Greiner v. Hicks, 45538.

• Citation: 231 Iowa 141,300 N.W. 727
• Decision Date: 18 November 1941
• Docket Number: No. 45538.,45538.
• Parties: GREINER v. HICKS.
• Court: United States State Supreme Court of Iowa

231 Iowa 141
300 N.W. 727

GREINER
v.
HICKS.

No. 45538.

Supreme Court of Iowa.

Nov. 18, 1941.

Appeal from District Court, Washington County; J. G. Patterson, Judge.

Plaintiff sued to recover for the death of her intestate, killed while riding as a guest in defendant's truck in Illinois. Jury verdict for defendant. The trial court sustained plaintiff's motion for new trial. Defendant appeals.

Affirmed.

[300 N.W. 729]

Louis J. Kehoe, of Washington, and Irving L. Block, of Chicago, Ill., for appellant.

F. M. Beatty, of Sigourney, and Henry B. Bailey, of Washington, for appellee.

GARFIELD, Justice.

On June 22, 1938, defendant took a load of cattle in his truck from Washington, Iowa, to Chicago. After delivering the cattle, he loaded his truck with 5 tons of binding twine and started on the return trip. Plaintiff's decedent, 29 years of age, and one Bennett, the owner of the cattle, rode with defendant as his guests. As he drove west on U. S. Highway 34, a four lane highway 40 feet wide, in the town of Downers Grove, defendant collided with the left rear end of a 2-ton truck belonging to the Tri-City Packing Co. which was also headed west. Both Greiner and Bennett were killed in the collision.

Shortly prior to the collision the Tri-City truck, driven by one Babcock, was stopped, headed west, partly on and partly off the north side of the paving. It appears without dispute that Babcock backed his truck for some distance shortly before the collision. Babcock as a witness claims that he brought his truck to a complete stop when he saw defendant's truck approaching about two blocks to the east and that it was stationary at the time of impact. It is defendant's claim as a witness that immediately prior to the collision the Tri-City truck backed to the south and east so suddenly and unexpectedly that there was little opportunity for him to avoid the collision. Defendant testifies that he saw the Tri-City truck when he was more than a block east of the place of

[300 N.W. 730]

collision. The highway was straight and fairly level and there was nothing to obstruct the driver's view. An eye witness placed appellant's speed at the time of impact at 50 to 60 miles per hour.

The administratrix of Greiner's estate brought this suit under the Illinois law, Ill.Rev.Stat.1941, c. 95 1/2, § 58a, permitting recovery for injury to or death of a guest caused by wanton and wilful misconduct of the operator of the motor vehicle. The jury returned a verdict for defendant. Upon plaintiff's motion, the trial court set the verdict aside and granted a new trial, from which ruling defendant has appealed.

[1][2][3] I. We have repeatedly held that the trial judge has considerable discretion in the granting of a new trial, and this court will not interfere unless there is a clear abuse of that discretion. Where, as here, the motion for new trial contains numerous grounds, the granting of a new trial will be sustained if any one of the grounds is good. We have also held that even though no single ground of the motion is sufficient, yet if, when considered together, all grounds reasonably support the granting of a new trial, the order will be affirmed. Brunssen v. Parker, 227 Iowa 1364, 291 N.W. 535;Jordan v. Schantz, 220 Iowa 1251, 1257, 264 N.W. 259;Morton v. Equitable L. Ins. Co., 218 Iowa 846, 850, 254 N.W. 325, 96 A.L.R. 315. We affirm the action of the trial court here.

[4][5] II. The justification for a new trial most strenuously urged by appellee is that the allegations of her petition stood admitted by appellant's answer as amended and that consequently the trial court should have submitted to the jury only the amount of appellee's recovery. The original answer was, in effect, a general denial. During the course of the trial, the answer was amended by alleging that plaintiff had received from the Tri-City Packing Co., or someone on its behalf, a joint tort feasor, $2,750, on account of the pecuniary damages resulting from the death of plaintiff's intestate. The amendment was not designated a separate division of the answer. In her motion for new trial, appellee for the first time raised the question that the new matter alleged in the amendment amounted to a waiver of the denial in the original answer; that, therefore, the petition stood admitted. Appellee relies on Miller v. Johnson, 205 Iowa 786, and cases cited page 787, 218 N.W. 472. The rule of these cases is that a denial is waived by the setting up of an affirmative defense in the same division of the answer. It seems to us, however, that this rule is not applicable here. We have held that where the new matter alleged was not in conflict with the denial, but consistent with it, the rule does not apply. See Walters v. Mutual Ben. H. & Acc. Ass'n, 208 Iowa 894, 896, 224 N.W. 494. Furthermore, appellee, so far as this record shows, proceeded throughout the trial as if the allegations of her petition stood denied by the answer as amended. The trial court apparently was so led to believe. Appellee did not move to separate the amended answer into counts or divisions. She did not raise the question during the trial that the petition stood admitted, by objection to testimony, motion for directed verdict, requested instruction, nor in any other manner. We think, therefore, under this record, appellee cannot claim for the first time after the verdict was returned that under the pleadings the only question at issue was the amount of recovery.

[6] III. It appears in evidence without dispute that appellee received $2,750 from the Tri-City Packing Company and in return executed a covenant not to sue said company, its insurer, its employee Babcock or any other employee “for or on account of damages for the death of Doniel Greiner.” The instrument provides that it is not a release but a covenant not to sue. In Instructions 24 and 25, the court told the jury that defendant was entitled to a credit of...