Ferris v. Riley

Citation251 Iowa 400,101 N.W.2d 176
Decision Date09 February 1960
Docket NumberNo. 49890,49890
PartiesCharles F. FERRIS, Jr., Appellee, v. Donald F. RILEY, Appellant.
CourtUnited States State Supreme Court of Iowa

Mitchell, Mitchell & Murray, John H. Mitchell, Fort Dodge, for appellant.

McCarville & Bennett, Herbert R. Bennett, Fort Dodge, for appellee.

THOMPSON, Justice.

This case results from a collision between automobiles owned and driven by the plaintiff and defendant in Fort Dodge on April 27, 1957. The accident occurred at night, as plaintiff was turning from Kenyon Road into Avenue D. His car was struck in the rear by defendant. He brought suit for damages claimed to have been sustained, and defendant counter-claimed. A jury trial resulted in a verdict and judgment for plaintiff in the sum of $80,000.00, and the defendant has appealed.

The only errors assigned are first, that evidence was improperly admitted which was incompetent under Section 321.266, of the Code, I.C.A., which requires reports of accidents; and Section 321.271, which directs that all reports shall be in writing, shall be confidential, and shall not be admissible or used in evidence in the trial of any civil case arising out of the facts on which the report is based; second, that although the court later struck such evidence from the record and admonished the jury not to consider it, its admission was error so pronounced and so material that it could not be corrected; and third, that the verdict is excessive and the result of passion and prejudice, and the trial court erred in refusing to grant defendant's motion for a new trial on that ground.

Since these are the only errors assigned or argued, it is not necessary to give consideration to the facts shown in the record as to the manner of occurrence of the collision. Some reference must be made to the evidence of plaintiff's injuries in connection with the third assigned error. The material evidence bearing on these questions will be set out in our consideration of the errors assigned as we reach them.

I. The first claimed error concerns the admission of certain testimony of Dr. Dan Egbert, Dr. Ivan Schultz, and Duane Homan, a highway patrolman. All of this evidence dealt with the sobriety or lack thereof of the defendant. It appears that Dr. Egbert was called to the police station in Fort Dodge shortly after the accident, where he saw the defendnat. He was asked if he made an examination of the defendant at that time, and defendant's counsel interposed this objection: 'Objected to as incompetent, irrelevant and immaterial and it is certainly a privilege relation, any evidence with reference to the examination, if any was given, or to a conversation between this doctor and Riley, and it is strictly privilege communication.' This objection was sustained. The witness was then asked who called the doctor and the objection was made that it was incompetent, irrelevant and immaterial as to who called him. This was overruled, and the witness answered that a member of the police force called him.

The witness then said he made an examination of the defendant and made certain observations. When he was asked to tell what these were, counsel said: 'Objected to as incompetent, irrelevant, and immaterial. The evidence is from a physician, evidence with reference to his examination, to what appears to be a patient.' The doctor then said it was the first time he had ever seen Mr. Riley, who had never been his patient. He then said: 'I was called down to see him for the County Attorney representing--'. At this point defendant's counsel objected: 'That evidence is strictly incompetent--reference as to what he was called down there fore and what he was doing. Its an attempt to indirectly do something that you cannot do directly to bring into the trial of this case some alleged record of some criminal proceedings, and the proceedings would be incompetent if they were introduced here and certainly the evidence of this witness is incompetent.'

Thereupon the jury was dismissed and a considerable colloquy took place, in which the court made it clear he considered the point at issue, in line with the earlier objections of the defendant, was whether the doctor was barred from testifying because of the statute prohibiting a disclosure of confidential communications from a patient; in other words, the doctor-patient relationship. The court said it would depend upon whether the doctor was called by the party himself, or by some 'outsider'. Counsel, then said: 'If he was called by the County Attorney's office, and he indicated that he was sort of representing the County Attorney's office, that is my most serious point.' What he meant by this is made clear by his further statement: 'I think we got into a difficult area there of evidence because if we had the record here, or if there was in existence some kind of a record, that this man had been convicted of driving a car while intoxicated, it could not be used here.' Counsel further said in substance that permitting the witness to say he was called by the County Attorney and the police might be a roundabout way of getting before the jury that some criminal charge had grown out of the accident, which if offered directly would be inadmissible. The court then said it was familiar with the rule that the record in a criminal case would not be admissible; and it closed the discussion with this statement: 'Well, I am not going to close the door as far as the defendant is concerned. He may make whatever record he desires. I can only meet these things as they come up from time to time, so that is as far as the Court would care to go at this time.'

It is clear that up to this point the defendant's objections to Dr. Egbert's testimony had been based upon two points; the claimed doctor-patient relationship, and what he considered an attempt to get into the record some testimony concerning criminal charges by an indirect method. In addition he had made some 'incompetent, irrelevant and immaterial' objections, to which we shall refer later. Nothing to this point apprised the court that any objection was made which had any bearing upon the admissibility of the testimony under our confidential report statutes, Sections 321.266 and 321.271, supra.

Continuing the examination of Dr. Egbert, he was asked if he made certain observations of the defendant, and what they were. This objection was interposed: 'Objected to as incompetent, irrelevant and immaterial. The evidence is from a physician, evidence with reference to his examination, to what appears to be a patient.' The objection was denied. The doctor then proceeded, without objection, to testify as to his examination: 'He had an alcoholic odor to his breath and he was unable to pick up coins from the floor while he was standing on one foot. He walked a straight line with moderate swaying. He was polite, answered his questions in a cooperative manner. There was moderate generalized redness in his throat. His eyes--pupils were dilated as occurs with alcoholism. They reacted to light. His ears, his neck, heart, lungs were all negative and I took a blood test checked for alcoholic content--'. The court at this point on its own motion struck out the reference to a blood test. The witness then, in answer to a specific question, said the defendant consented to a blood test, and that he took one. No objection was lodged to this; but when the question was put 'What did you do in taking it?' counsel said: 'I will object to that as incompetent, irrelevant and immaterial.' This was denied. Dr. Egbert then said he made a blood test, sealed the blood in a container and gave it to Patrolman Homan, who was present. He also stated he had an opinion as to whether Riley was intoxicated at that time, from his observations and examination. All this came in without further objection; but when he was asked 'Will you tell what that opinion is?' objection 'as incompetent, irrelevant and immaterial' was made and overruled. The witness answered that his opinion was that the defendant was under the influence of alcohol, and that this meant he was intoxicated, but not to what degree.

The following question asked the doctor to explain about the degree of intoxication, with objection 'incompetent, irrelevant and immaterial,' also denied. Dr. Egbert then said: 'I would say he was moderately intoxicated.' Counsel moved to strike this answer 'as a statement of an opinion, an incompetent opinion.'

After cross-examination of Dr. Egbert by defendant's counsel, the testimony of Dr. Ivan Schultz, who tested the blood sample, was admitted with no objection. Dr. Schultz testified that the sample showed 184 milligrams of alcohol per each 100 cubic centimeters of blood. Dr. Egbert had previously testified, on cross-examination, that 150 milligrams is usually considered sufficient to warrant prosecution, and that 184 milligrams indicates moderate intoxication.

Duane Homan, an Iowa Highway patrolman, testified without objection that he saw the defendant at the scene of the accident, observed that he had been drinking, as he could smell liquor in his breath, and had him taken to the police station. He observed Riley at the station, his speech was slurred, and his walk and balance were unsteady, which the witness thought indicated he had been drinking. On cross-examination by defendant's counsel, an attempt was made to interrogate this witness as to conversations with the plaintiff Ferris and observations he had made, aided by what Ferris told him; and at this point plaintiff's counsel objected that this would be a privileged communication. A further colloquy ensued in which the court said: 'Any information procured by a patrolman or any other peace officer from either of the parties to this accident and in which he makes his report or attempts to testify is in violation of the statute,--'.

Plaintiff's objection and the following comments of the court are the first places in the record where any question as to...

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