Hartford Fire Ins. Co. v. Lefler

• Citation: 135 N.W.2d 88,257 Iowa 796
• Decision Date: 04 May 1965
• Docket Number: No. 51683,51683
• Parties: HARTFORD FIRE INSURANCE COMPANY, a corporation, Plaintiff-Cross-Appellee, v. Sturgise LEFLER and Joe Hill, Defendants-Appellants.
• Court: United States State Supreme Court of Iowa

Page 88

135 N.W.2d 88

257 Iowa 796

HARTFORD FIRE INSURANCE COMPANY, a corporation, Plaintiff-Cross-Appellee, v. Sturgise LEFLER and Joe Hill, Defendants-Appellants.

No. 51683.

Supreme Court of Iowa.

May 4, 1965.

Stephens, Thornell & Millhone, Clarinda, and Nichols & Thornell, Sidney, for defendants-appellants.

Ross, Johnson, Stuart, Tinley & Peters, Council Bluffs, and Eaton & Eaton, Sidney, for plaintiff-cross-appellee.

LARSON, Justice.

This action for damages brought by Hartford Fire Insurance Company, hereafter called Hartford, as subrogee and assignee of Ira Bennett, to recover for the damage to Mr. Bennett's farmhouse and contents caused when the house was struck by a farm tractor owned and operated by Sturgise Lefler, while in the employ of Joe Hill, resulted in a jury verdict for defendants.

Thereafter, Hartford filed its motion for judgment notwithstanding the verdict and, in the alternative, for a new trial. The trial court denied the former and sustained the motion for a new trial on the ground that it erred in submitting the issue of sudden emergency to the jury. Both parties appeal.

From the record we learn that Mr. Lefler, employed by Mr. Hill, was operating his own farm tractor pulling an empty wagon up the north slope of a hill on Highway 59 about 6 miles south of Shenandoah, Iowa, toward to farm buildings of Mr. Bennett located on the east side near the crest of the hill, in the afternoon of October 19, 1961, when Mr. Hagey, driving a 1958 Ford automobile, came up behind him. Highway 59 at this point is a north-south two-lane paved highway with a 7 or 8 foot shoulder on the sides. The weather was clear and the highway was dry. There was a yellow no-passing line on the southbound side as you approach the hill crest. At this time and place Mr. Lefler was seated on the tractor and was driving about 15 or 20 miles per hour in fifth gear. Mr. Hagey had come up behind Lefler near the bottom of the second hill north of the Bennett house, and had shifted his car to second gear and followed at a distance of some 75 to 100 feet for a little less than a quarter of a mile, when Mr. Lefler looked around, saw him, stood up on the tractor, and then motioned to Mr. Hagey. At the same time Mrs. Bredensteiner, driving her car, approached the hill crest from the south. When she was about 300 feet from the spot in front of the Bennett house, she saw Mr. Lefler standing on his tractor making some motion with his hand, saw the Hagey car pull out as though to pass and then pull back in his own lane. She saw the tractor pull to the right, make a half circle across the road into Bennett's garden, and then smash into his house. She had pulled over on her shoulder and stopped at least 200 feet away.

Mr. Hagey somehow safely passed by the Lefler tractor, but Mr. Lefler fell off sometime during this maneuver and the tractor was then unmanned. There is little or no evidentiary conflict up to the time Mr. Lefler stood up on his tractor. Thereafter there is considerable. Mrs. Bredensteiner saw Lefler wave his arm but did not know whether it was to go around or stay back. She saw the tractor pull over to the right and said Lefler fell off 'as it went across the highway * * * just about at the east edge' of the pavement. She saw Hagey pull to his left but did not know whether he crossed the yellow line before he pulled back. She did not think he passed the tractor before it turned across the pavement. She pulled into the shoulder and stopped 'to avoid a wreck.'

Mr. Hagey testified he followed Lefler for some distance 'maybe 75 to 100 feet behind him.' He said he 'knew we couldn't pass right then' so he 'followed him (Lefler) at a safe distance.' He said he didn't attempt to pass until Lefler stood up, looked over the hill, and 'motioned me to go around him.' Then Hagey started to pass, still in second gear, and when he discovered Mrs. Bredensteiner's car, he stepped on the gas and went on around, clearing her by some 200 feet. He did not see what happened to Lefler in the meantime.

On the other hand, Mr. Lefler denied he signaled Mr. Hagey to go around, but said after he saw the northbound car he motioned Hagey to stay back. He said he saw the Hagey car behind him 'quite a little ways' while he was going up the 'long slope.' After he reached the yellow line near the crest he stood up, saw a car coming, gave a 'slow down' signal to the man behind him, pulled off the pavement, hit a bump and fell off. He doesn't know how he got across the pavement. He recalls before he fell he had the center front wheels and the right rear wheel of his vehicle on the right shoulder. On cross-examination he said he might 'have pulled it back to the left' when he hit the bump and fell off. He said the tractor had power-steering and turned fast, and that while standing up he could not apply the brakes.

The court submitted the issues of failure to control and driving a tractor at an unreasonable speed under the circumstances, overruled plaintiff's motion for directed verdict as to liability, overruled objections to instruction relating to sudden emergency and as to contributory negligence, and overruled plaintiff's objection to the submission of the issue of the sudden emergency and as to contributory negligence, and overruled plaintiff's objection to the submission of the issue of sudden emergency. In overruling plaintiff's motion for judgment notwithstanding the verdict and granting a new trial, the court found that the verdict does not effectuate justice, that when the testimony was properly considered it showed no emergency existed, but if one did occur it was contributed to by Lefler himself, and that the submission of that issue to the jury was error.

The first problem presented, then, is whether it fairly appears the trial court's finding that the verdict did not effectuate justice was justified, and whether under the circumstances the court abused its discretion in setting aside the verdict and in ordering a new trial.

I. Whenever it appears that the jury has, from any cause, failed to respond truly to the real merits of a controversy, it has failed to do its duty, and when the superior and more comprehensive judgment of the trial court dictates the jury verdict failed to administer substantial justice to the parties in the case, a new trial should be granted. So we said in Dewey v. Chicago & N. W. R. R. Co., 31 Iowa 373, 378, and have not since said otherwise. In re Estate of Hollis, 235 Iowa 753, 760-761, 16 N.W.2d 599, 602-603; Torrence v. Sharp, 246 Iowa 460, 464, 68 N.W.2d 85, 88; Hall v. West Des Moines, 245 Iowa 458, 470, 62 N.W.2d 734, 740. In Elings v. Ted McGrevey, Inc., 243 Iowa 815, 822, 53 N.W.2d 882, 886, in passing on the court's power to grant a new trial, we said, 'when ti is convinced that a verdict does not effect justice or that a jury has not done its duty', the trial court may independently exercise the power to grant a new trial.

We have also said when the trial court apparently exercises that power for those reasons, although it may involve conflicting testimony, 'appellate tribunals should be show to interefere.' Woodbury Company v. Dougherty & Bryant Company, 161 Iowa 571, 573, 143 N.W. 416, 417. In Maynard v. Des Moines, 159 Iowa 126, 128, 140 N.W. 208, we said: 'But a trial judge has a distinct function to perform, with respect to such matters (granting new trials in the interest of justice), which we feel is not exercised as freely and as often as it should be. Such court is something more than a mere moderator presiding over a contest in which it has no concern. On the contrary, it has a distinct function to perform, and, whenever it is convinced that justice has not been done under the law and the facts, it is its duty to set aside the verdict and grant a new trial. * * * As an appellate court we have a somewhat different function to perform, * * * and we should not interfere with the final order of the trial judge, except in cases where it appears that such judge has abused his discretion and acted in such an arbitrary and capricious manner that, instead of effectuating justice, he has in fact thwarted it.'

Many other cases holding to a like effect may be cited, including the recent cases of Larew v. Iowa State Highway Comm., 254 Iowa 1089, 1094, 120 N.W.2d 462, 464; Coleman v. Brower Construction Co., 254 Iowa 724, 730, 119 N.W.2d 256, 260; Comer v. Burns, 255 Iowa 251, 259, 122 N.W.2d 305, 310, and citations in them.

Under these pronouncements it is our plain duty to uphold the trial court's action in setting aside a verdict on the ground that it does not effectuate justice unless it is made to appear its action under the circumstances is an abuse of its discretion, or will not aid justice, but tend to thwart it. Apparently the trial court here was of the opinion that plaintiff would not have been denied some recovery if the jury had been properly instructed and therefore had not truly responded to the real merits of the controversy under the facts and the applicable law. It found unequivocally 'that the verdict in this case does effectuate justice,' and predicated its decision on the inappropriate instruction relating to sudden emergency, which it said was prejudicial error. Other grounds of the motion were overruled, but insofar as they tend to support the grant of a new trial, we may consider them. McMaster v. Hutchins, 255 Iowa 39, 48, 120 N.W.2d 509, 514, and citations; Stake v. Cole, Iowa, 133 N.W.2d 714, and citations, filed March 9, 1965. Of course, to justify the granting of a new trial upon a proper motion, the trial court's error need not amount to reversible error. If such were the rule, the trial court's power to correct a failure of justice would be meaningless. Coulthard v. Keenan, 256 Iowa ----, 129 N.W.2d 597, 602, and citations; Hall v. West Des Moines, supra; Nicholson v. City of Des Moines, 246 Iowa 318, 330, 67 N.W.2d 533, 540. See Erickson v. Thompson, 1965,...