Freese v. Lemmon
| Decision Date | 28 June 1978 |
| Docket Number | No. 2-58567,2-58567 |
| Citation | 267 N.W.2d 680 |
| Parties | Lena FREESE, Appellant, v. Norman F. LEMMON, Kay Ellann Lemmon and Merwin R. Dieckmann, Appellees. Jo Ann FREESE, Administrator of the Estate of John R. Freese, Deceased, Appellant, v. Norman F. LEMMON, Kay Ellann Lemmon and Merwin R. Dieckmann, Appellees. |
| Court | Iowa Supreme Court |
Lundy, Butler, Wilson & Hall, by John L. Butler and R. Kurt Swaim, Eldora, for appellants.
Swisher & Cohrt, Waterloo, for appellees Lemmon.
Wadsworth, Elderkin, Pirnie & Von Lackum, by D. A. Elderkin, Cedar Rapids, for appellee Dieckmann.
EN BANC *.
This appeal involves a quite complicated submission to a jury of combined automobile negligence and medical malpractice cases, which were pleaded and tried together under our liberal rules on joinder of actions, parties, and trials, rules 22-24, 185, Rules of Civil Procedure. We previously ruled on one aspect of the litigation. Freese v. Lemmon, 210 N.W.2d 576 (Iowa).
In 1969 Norman F. Lemmon (Lemmon) was 33 years of age and a resident of Cedar Falls, Iowa. For several years he had suffered severe headaches as well as dizziness and light-headedness. He had no history of epilepsy nor, apparently, did his parents or siblings. His physician was Merwin R. Dieckmann, a medical doctor engaged in family practice. Dr. Dieckmann prescribed a medicine for Lemmon called Periactin.
On the evening of July 27, 1969, while he was reading to his son at home, Lemmon was suddenly struck with a seizure which rendered him unconscious. He was taken to a hospital where Dr. Dieckmann examined him. Various tests were made with negative results.
Dr. Dieckmann thereupon called in Robert H. Kyle, a medical doctor specializing in neurosurgery. Dr. Kyle examined and tested Lemmon. He testified:
The examination was completely normal. This was a 33-year-old right-handed intelligent engineer and we could find nothing wrong with him. Carried out a brain wave or electroencephalogram and it proved to be normal.
Q. Then to what did you attribute this seizure? A. We didn't. We didn't know what caused it.
Q. What was your diagnosis based on the history? A. Single grand mal seizure, cause undetermined.
Q. What is a grand mal seizure? A. Well, it's a sizable electrical storm in the brain. It doesn't specify its cause or anything.
Lemmon appeared to recover, and Dr. Dieckmann discharged him. The testimony of witnesses is not consistent as to what advice Dr. Dieckmann gave him. Depending on which witness the jury believed, it could find Dr. Dieckmann did not advise him on the subject of driving a car or it could find Dr. Dieckmann told him he could pursue his regular activities including car driving. Dr. Dieckmann did take him off of Periactin, as a possible source of the trouble. Lemmon returned to his job and indeed re-roofed his home.
On September 21, 1969, plaintiff Lena Freese (plaintiff) was standing off of the paved portion of Rainbow Drive in Waterloo, Iowa. Lemmon and his wife owned a car and Lemmon was operating it on the Drive with his wife's consent. He suddenly lost consciousness. The car angled off to the side, struck plaintiff, pinned her against a parked car, and inflicted serious injuries upon her.
Lemmon was taken to a hospital. After regaining consciousness he was confused and had some head pain and weakness of his left arm and leg. The next day he seemed no better and Dr. Dieckmann decided to send him to Mayo Clinic in Rochester, Minnesota. At the clinic Ross Miller, a medical doctor specializing in neurology, and other physicians, examined him. Dr. Miller testified in depositions which were proffered but not admitted in evidence:
And, with the history of sudden loss of consciousness and the weakness of the left arm and leg, advised a right carotid angiogram which is a test where the dye is placed in the right carotid artery of the neck and X-rays are taken of the contrast media as it goes through the arteries of the brain. This was done on September 24th and showed a large mass in the right temporal lobe. He was taken to surgery where a right temporal craniotomy was carried out and the skull was opened and we encountered a large blood clot within the brain filling the temporal lobe of the brain. The hemmorrhage was removed. We found no evidence of tumor in the cavity where the hemmorrhage lay. We found no evidence of an abnormal collection of blood vessels nor aneurysm or blister of the blood vessel. And, his post-operative course, he appeared to be less confused. He continued to have weakness in the left arm and leg. On the 26th of September he was alert and answered questions and the weakness had improved.
Also:
From our gross examination of the blood clot this appears to be an acute blood clot that occurred at the time of this seizure when he was driving his car, and we found no evidence of a blood clot being present previously. Now a small blood clot could have still been there and not caused any problem.
Dr. Miller released Lemmon with instructions not to work for three weeks and not to drive. While Dr. Miller testified in generalities about not permitting a patient to drive after a seizure, he was unwilling to state that Lemmon should have been so advised after the first incident of unconsciousness since he did not see Lemmon at that time.
Sometime later Lemmon had two other incidents of unconsciousness perhaps from scar tissue from the surgery but after a subsequent free period he was eventually advised he could drive again.
In due course plaintiff brought an action for damages against Lemmon and his wife (as co-owner of the car) as well as Dr. Dieckmann. Plaintiff's husband commenced a similar action for loss of consortium. Subsequently plaintiff's husband died and his administrator was substituted. The trial court consolidated the actions and tried them with a jury. At the conclusion of the evidence the court directed a verdict for Dr. Dieckmann and submitted to the jury the claims against Lemmons. The jury found for Lemmons. Plaintiffs appealed and all defendants cross-appealed.
We transferred the appeals to the Court of Appeals, which affirmed in part, reversed in part, and remanded. All parties then applied to us for further review, and we granted the applications.
The parties argue numerous issues but we find the following to be determinative: did the trial court err (1) in its instructions submitting the issue of negligence against Lemmons, and (2) in directing a verdict for Dr. Dieckmann?
I. Instructions Under Claims Against Lemmons. In their petitions, plaintiffs alleged Lemmon was negligent (a) in five respects regarding rules of the road, some predicated on statute and some on common law, and (b) in driving when he should have known this was dangerous. The trial court held that plaintiff established violation of the rules of the road under (a) as a matter of law, as well as proximate cause, but that Lemmon's unconsciousness excused the violations as a matter of law. The ruling relating to excuse appears to be based, as to the statutory specifications in (a), on the legal excuse doctrine in Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552, and as to the common law specifications in (a), on legal excuse under the emergency doctrine. Bletzer v. Wilson, 224 Iowa 884, 276 N.W. 836. The court further held, however, that plaintiffs developed a jury issue under the specification in (b) driving when Lemmon should have known this was dangerous.
Hence the court did not submit the specifications under (a). It submitted the specification in (b) and placed the burden of proof on plaintiffs, in these instructions:
No. 9. Iowa law provides that any person must exercise due care in connection with the operation of a motor vehicle.
Under certain circumstances a person's health or physical condition may be such that in the exercise of due care he should not operate a motor vehicle at all.
If a person knows or should know of conditions or circumstances involving his health or physical condition which would render it potentially hazardous for him to operate a motor vehicle then such person would be guilty of negligence, if he undertook the operation of a motor vehicle.
Plaintiffs claim that defendant Norman F. Lemmon was negligent in this respect.
No. 10. In order for plaintiffs to recover on their claims they must establish by a preponderance of the evidence each of the following propositions:
1. That the defendant Norman F. Lemmon was guilty of negligence with respect to the rule of law submitted to you in Instruction No. 9.
2. That such negligence was the proximate cause of the mishap in question and damages sustained by the plaintiffs.
If plaintiffs have established each of these propositions by a preponderance of the evidence your verdict will be for the plaintiffs and you will consider the matter of damages.
If the plaintiffs have failed to establish either or both of these propositions by a preponderance of the evidence then your verdict will be for the defendants. (Italics added.)
A. Plaintiffs object that while the trial court rightly held the charges of negligence under (a) to be established, together with proximate cause, it should then have placed the burden of proving legal excuse for such violations on Lemmons and submitted that issue to the jury. The Court of Appeals so held and we agree.
The trial court and the Court of Appeals were right that violation of the rules of the road in (a), plus proximate cause, appeared as a matter of law. That those violations themselves resulted from Lemmon's unconsciousness also appeared beyond doubt. The only question, then, was whether Lemmon was legally excused by virtue of that unconsciousness. This question presents two issues: Is legal excuse available if it results from the actor's own fault? If not, does the actor relying on legal excuse have the burden of proving that the legal excuse claimed did not result from his own fault? We use "burden of proof" here...
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