Hamdorf v. Corrie

• Decision Date: 08 March 1960
• Docket Number: No. 49879,49879
• Citation: 251 Iowa 896,101 N.W.2d 836
• Parties: Albert HAMDORF, Administrator of the Estate of Marie Hamdorf, Deceased, Appellee, v. F. Charles CORRIE, Appellant.
• Court: Iowa Supreme Court

Page 836

101 N.W.2d 836

251 Iowa 896

Albert HAMDORF, Administrator of the Estate of Marie Hamdorf, Deceased, Appellee, v. F. Charles CORRIE, Appellant.

No. 49879.

Supreme Court of Iowa.

March 8, 1960.

Rehearing Denied May 6, 1960.

Edward C. Halbach, Clinton, and Sebesta & Kuehnle, Mechanicsville, for appellant.

Otto L. Schluter and David M. Elderkin, Cedar Rapids, for appellee.

THORNTON, Justice.

This wrongful death action arose out of a collision between two automobiles on U.S. Highway No. 30 on July 12, 1957, at about 3:30 P.M. a mile and one-half east of Lisbon in Cedar County. One of the autos was a 1955 Ford sedan that had been traveling east on said highway and was driven by Albert Hamdorf and his wife, Marie Hamdorf, was riding with him as a passenger in the right front seat. The other car was a 1955 Plymouth station wagon owned by defendant F. Charles Corrie and driven by his wife, Louise Rose Corrie. The injuries received by Mrs. Hamdorf and Mrs. Corrie were fatal. Mr. Hamdorf was severely injured.

Plaintiff administrator brings this action seeking damages for Mrs. Hamdorf's death on the theory Mrs. Corrie was negligent in driving the Corrie car across the center line of the highway onto the wrong side and into the Hamdorf car. The jury returned a verdict of $20,000. Defendant's motion for a new trial was overruled and he appeals.

Defendant urges 15 grounds for reversal. Where possible we will consolidate our discussion of the grounds urged.

I. Plaintiff started a number of actions arising out of this collision. The reason for all of them is not too apparent. Some of them have been dismissed by plaintiff. Defendant contends the present action is within rule 215, Rules of Civil Procedure, 58 I.C.A., as there had been two voluntary dismissals of this action and the trial court should have sustained his motion to dismiss. This action is brought by plaintiff as administrator and against F. Charles Corrie individually as the owner of the station wagon driven by his wife. If there had been two prior voluntary dismissals of this action defendant's contention must be sustained. However we find plaintiff as administrator has started only one other action against the defendant as an individual, case number 22940 in Cedar County, in which action he also joined defendant as administrator. As an administrator he has also filed a claim in the estate of Louise Rose Corrie, this of course is not against defendant as an individual. Both case 22940 and the claim mentioned were dismissed by plaintiff and defendant contends he, as an individual and as administrator, stand in such privity that a suit against one is a suit against the other.

Rule 215 provides: " * * *; but if made by any party who has previously dismissed an action against the same defendant, in any court * * *, including or based on the same cause, such dismissal shall operate as an adjudication against him on the merits, * * *." (Emphasis added.)

There is no provision as to standing in privity and to read such into the rule would be a plain departure from its terms. The motion was properly overruled.

II. Defendant complains of the overruling of his motion to consolidate this action, number 23003, with case number 22939, an action by plaintiff here in his individual capacity against defendant here as an individual and as administrator, in which defendant as an individual filed a counterclaim, and case number 23002, another action by plaintiff individually against defendant individually, in which defendant filed a counterclaim individually, or in the alternative merely consolidate number 23002 with the present action. At the time this motion was filed case number 22939 had already been abated and plaintiff had filed a dismissal. The trial court might well have sustained the motion to consolidate case number 23002 and this action. Since the amendment to rule 185 an objecting party is required to show prejudice if the trial court desires to exercise its discretion. However, this amendment in no way limited the discretion of the court in ordering a consolidation, it eliminated the absolute power of veto in favor of the exercise of judicial discretion. See Author's Comment to Rule 185, 1958 Pocket Part, Vol. 2, Cook's Iowa Rules of Civil Procedure. We have held the trial court's exercise of discretion to bring in a third party defendant under rule 33(b) presents for our consideration not whether we would have exercised judicial discretion as did the trial court, but whether the court went beyond its fair discretion. Best v. Yerkes, 247 Iowa 800, 816, 77 N.W.2d 23, 33, 60 A.L.R.2d 1354. The Federal Courts in passing on Federal Rule of Civil Procedure 42(a), 28 U.S.C.A., comparable to our rule 185, so hold. Whiteman v. Pitrie, 5 Cir., 220 F.2d 914, 918; and MacAlister v. Guterma, 2 Cir., 263 F.2d 65, 69. The mere fact it would be possible and perhaps not too difficult to try the actions together does not indicate the trial court went beyond its fair discretion.

III. Defendant assigns error in the admission of testimony of Mr. Dickinson, a highway patrolman, as an expert or skilled observer, as to the point of impact and the giving of an instruction on expert testimony and the consideration to be given such testimony. As to the instruction, defendant requested one on the same subject matter and in his objection to the instruction as given restated his objection to the foundation, qualifications of the witness, and the testimony would invade the province of the jury, and concluded by requesting an amplification contained in his request. It is sufficient to say a proper objection was not raised in the trial court and where a party requests an instruction and the court substantially instructs as requested such instruction became the law of the case. In re Estate of Iwers, 225 Iowa 389, 397, 280 N.W. 579, and Grosjean v. Chicago, M. & St. P. Ry. Co., 146 Iowa 17, 23, 123 N.W. 162.

The record relating to the opinion testimony of Dickinson is not satisfactory from defendant's standpoint. When he was called as a witness a number of exhibits were already in evidence showing the scene of the accident and the conditions existing there. Plaintiff had placed an "X" on exhibit P-1 at the east end of a skid mark to indicate the place of impact, and a photographer, Mr. Burianek, had testified that skid marks 36 feet long on the south, or plaintiff's side of the highway, led up to the "X" on exhibit P-1. The same skid marks were also shown on exhibits P-4, P-13 and P-14 and an "X" had been placed on exhibit P-9 by the witness, Burianek, to correspond to the "X" on exhibit P-1.

After testifying he had been a member of the State Highway Patrol eleven and one-half years, the number of accidents investigated by him would run into the hundreds, his attending traffic control school in 1947 and four times since, and to his observation at the scene, the following took place:

"Q. Now is the particular skid mark that you referred to shown on plaintiff's Exhibit 1? A. Yes, it is right there.

"Q. And where did that lead, Mr. Dickinson? A. This skid mark let up to where I claim the point of impact was.

"Mr. Sebesta: If the Court please, that about what he claims is an opinion--

"The Court: He can testify where in his opinion the point of impact was, and then he can be asked again the question where the skid marks ran in relation thereto. We will sustain the objection at the present time."

The objection was made after the question was answered and a motion to strike the testimony was not made. The evidence stands. The statement of the trial court and his ruling sustaining the objection are inconsistent, but the ruling does not have the effect of striking the testimony. Weilbrenner v. Owens, 246 Iowa 580, 68 N.W.2d 293, 296, and Ducummon v. Johnson, 242 Iowa 488, 496, 47 N.W.2d 231.

Later Dickinson was asked his opinion as to the point of impact based on his training, experience and observations. He was allowed, over objection, to mark the spot on an exhibit. From the record it is clear this is the same point of impact he claimed in the testimony above set out. The situation here is similar to that in Nielsen v. Wessels, 247 Iowa 213, 229, 230, 73 N.W.2d 83, 92. In the Nielsen case the trial court refused to allow a highway patrolman to testify to the point of impact over objection. We there said at page 229 of 247 Iowa and at page 91 of 73 N.W.2d " * --- we may say, without so ruling, that the Court might well have permitted him to answer, whether the witness be considered to be an expert or nonexpert. The ruling on the objection was largely in the discretion of the trial court." Citing authorities.

And we went on to say the adverse ruling was without prejudice because the witness had previously been asked without objection this question: "As you stood there that day, could you determine where the point of impact was?" He answered, without objection: "I would say, from my own observation, personally, it was on the south side of the center line." The differences in Nielsen and the instant case are slight. In Nielsen the patrolman had already testified to the accident being on the south of the center line from his total observations. Here the patrolman had placed the point of impact at the east end of the skid mark he had described. The effect is the same in each instance, the patrolman has fixed the point of impact from his observation, in fact it is repetition. No prejudicial error appears. For a discussion of point of impact cases see: Annotation, 66 A.L.R.2d 1050, 1075.

Mr. Dickinson also testified over objection: "Well, I claim that that car was like that, and the Corrie car was coming across in front of it, and they hit like that."

The record shows the officer placed toy cars on the south side of the highway as shown on the plat in evidence to illustrate this testimony. The situation here presented is close to that in Brower v. Quick, 249 Iowa 569, 88 N.W.2d...