Fenner v. Crips Bros.
| Decision Date | 21 October 1899 |
| Citation | 80 N.W. 526,109 Iowa 455 |
| Parties | TERESSA FENNER v. CRIPS BROS., W. S. CRIPS, S. P. CRIPS, MITCHELL GRAMMER, Appellants |
| Court | Iowa Supreme Court |
Appeal from Wapello District Court.--HON. ROBERT SLOAN, Judge.
ACTION for damages. Verdict and judgment for the plaintiff, and defendants appeal.
Affirmed.
McElroy & Heindel for appellants.
Steck & Smith for appellee.
It is sometimes difficult, because of the obscurity in the language employed, to determine precisely what issues are presented in the petition or raised by the answer. These only should be submitted to the jury. But, as the parties by amendment may introduce new issues or make certain those intended, their interpretation of the pleadings, when clearly manifested, is uniformly adopted by the courts. Thus, permitting the introduction of evidence on an issue not specifically pleaded, without objection, obviates the necessity of its formal presentation. This is put on the ground of waiver by some courts, and of that of consent or acquiescence by others. Beach v. Wakefield, 107 Iowa 567, 76 N.W 688; Long v. Valleau, 87 Iowa 675, 55 N.W. 31; Bowers v. Thomas, 62 Wis. 480 (22 N.W. 710); Erickson v. Fisher, 51 Minn. 300 (53 N.W. 638); Isaacson v. Railway Co., 27 Minn. 463 (8 N.W. 600). Often the evidence is admissible on other issues clearly stated, and then nothing may be inferred from failure to make objection to its introduction. But acquiescence in the trial of a particular issue may quite as certainly appear from requesting an instruction under which it would be submitted to the determination of the jury. When an issue is clearly recognized by a party as being involved in the trial, and he not only makes no objection thereto, but affirmatively consents or requests that it be passed upon. he cannot be heard afterwards to complain of the court's action in doing what he desired. Light v. Railway Co., 93 Iowa 83; Campbell v. Ormsby, 65 Iowa 518, 22 N.W. 656; Smith v. Railroad Co., 38 Iowa 173.
II. The petition plainly charged negligence on the part of Crips Bros. in furnishing an unsafe team and an incompetent driver but these allegations were unsupported by the evidence, and the court instructed the jury that "the only question submitted to you is whether or not the driver of the team Mitchell Grammer, was guilty of negligence in the rate of speed at which he was driving the team when the vehicle was upset and the plaintiff was injured, or whether or not he was guilty of negligence in driving and managing said team." The petition, among other things, alleged that Crips Bros sent Mitchell Grammer, as driver, with a carryall, to bring the plaintiff and others home from a picnic; "he being careless and reckless, and totally unfit to drive the team of horses attached thereto, and that, while returning, the said team of horses, under manipulation of the driver, ran, and continued to run, being hitched to the wagon wherein plaintiff and her family were, at a high and unmanageable rate of speed, the said driver being incompetent to drive the same, until reaching a point on East Main street, * * * where the said wagon was with great force turned over upon plaintiff." We might have some difficulty in determining whether negligence on the part of the driver on...
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