Hofacre v. City of Monticello

• Decision Date: 10 May 1905
• Citation: 103 N.W. 488,128 Iowa 239
• Parties: HOFACRE v. CITY OF MONTICELLO.
• Court: Iowa Supreme Court

128 Iowa 239

103 N.W. 488

HOFACRE

v.CITY OF MONTICELLO.

Supreme Court of Iowa.

May 10, 1905.

Appeal from District Court, Jones County; B. H. Miller, Judge.

Action at law to recover damages for injuries received by plaintiff through a fall upon a sidewalk in the defendant city. The answer was a general denial. The case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $5,219. Defendant appeals. Reversed.Herrick & Bauder and Welch & Welch, for appellant.

J. W. Doxsee and F. O. Ellison, for appellee.

DEEMER, J.

Before going to the merits, there is a question of practice which must be disposed of. Plaintiff has filed a motion to strike parts of the evidence from the abstracts on the ground that it was not properly preserved and made of record in the trial court by bill of exceptions or otherwise. The facts with reference to this matter are that the evidence was taken down by two shorthand reporters, one serving during the early part of the trial and the other during the latter part. B. I. Tanner and L. M. Hull were the two reporters, and they were each official reporters of the district court of Jones county. It was agreed between counsel that Tanner should certify all shorthand notes taken upon the trial, including those taken by Hull, as though he were the sole reporter in the case, and that his certificate should have the same force and effect as though the notes were certified by both officials. At the conclusion of the trial, and before the return of the verdict, Tanner made a certificate to the shorthand notes as if he had reported the entire testimony, and the trial judge also certified the notes as required by law. The notes so certified were filed March 21, 1903. The verdict of the jury was returned on the same day, and judgment was rendered thereon on April 13, 1903. Notice of appeal was served May 27, 1903. On September 4, 1903, a translation of the shorthand reporters' notes, certified by Tanner alone, was filed with the clerk. This was followed on the 21st of that month with a certificate from Hull, the other shorthand reporter, both to the notes taken by him and to the translation thereof as well. December 29, 1903, Hull made another certificate to the shorthand notes and the translation thereof, and on January 4, 1904, Tanner, by direction of the trial court, filed an amended certificate to his shorthand notes and to the translation thereof. Remembering that this is a law action, and that the statutes now recognize shorthand notes duly certified as being the equivalent of a bill of exceptions, it is apparent from this statement that the evidence was properly preserved under the provisions of section 3675 of the Code, or, if this be not true, that plaintiff, on account of her counsel's agreement, is now estopped from asserting that the notes are not properly certified. Brethol v. Village (Ill.) 48 N. E. 38. The translation of the shorthand notes was not required to be filed at any particular time. All that is necessary in a law action is that it be filed and in form for use when such translation becomes necessary; and this time does not ordinarily arrive until we are compelled to resort thereto in order to discover what the evidence really was. Smith v. Wellslager, 105 Iowa, 140, 74 N. W. 914, and cases cited. It appears, however, that the agreement between counsel was for some reason not entered of record at the time it was made. When this omission was discovered, defendant's counsel, at a subsequent term of court, and after the time for the filing of a bill of exceptions had expired, made a motion for a nunc pro tunc entry of this agreement upon the records. This motion was resisted by appellee, but the court, after hearing the evidence adduced by the parties on the issue made, sustained the same, and made the entry of the agreement nunc pro tunc. No appeal was taken from this ruling, and, if the trial court had jurisdiction and authority to make it, it must be accepted as a verity. Counsel claim, however, that the court had no such authority. They rely upon statutes relating to the correction of errors in journal entries made through mistake or oversight, which have no possible application to this case. An entry nunc pro tunc is something entirely different from an entry correcting an oversight or mistake. Courts have inherent power to make orders nunc pro tunc, and they are not limited by these special statutes as to time when application may be made. Such an entry, of course, assumes that an act was done at a particular time, which never got of record in the proper books; and the entry is finally made now for then. If there was no act done, then, of course, there can be no entry nunc pro tunc. If the act was in fact done, but the proper evidence thereof is wanting, it may subsequently be supplied so as to relate back to the time when the act was in fact done. That the entry in this case was not made until after the time for the filing of a bill of exceptions had expired is of no importance. The very object of the proceeding is to secure an entry which will relate back. If no attempt had been made to file a bill under the agreement, or if there had not in fact been such an agreement as claimed, the court could not, after the time for the filing of a bill had expired,do anything which would give the defeated party a right to then file a bill. But that is manifestly not this case. As the trial court had jurisdiction to make the order, we shall not inquire as to the sufficiency of the evidence to sustain it; nor shall we cite authorities in support of the principle announced. They are already familiar to the profession. The motion to strike evidence is overruled.

2. We come now to the merits, and shall first dispose of the questions relating to rulings on evidence. A physician who was called to treat plaintiff after she had received her injuries, and who had theretofore been her medical adviser, was placed upon the witness stand by the plaintiff, and in his examination detailed the extent of the injuries, and testified as to the treatment he gave her. He also testified that at the time of the accident plaintiff's health was fairly good; and that, aside from her injuries, it kept fairly good for about three weeks after her fall, and that then she commenced to decline. On cross-examination he was asked as to what plaintiff's trouble was before her fall upon the sidewalk. Objection to this was sustained because it related to a period anterior to that inquired about in his examination in chief. The objection was sustained. He stated in his cross-examination that in what he had said about her health before the accident he meant that “she was in fair health for her,” and that his opinion with reference thereto was based upon knowledge acquired from his previous treatment of her. This answer was also stricken out on motion. These rulings were wrong, but, as the doctor was subsequently permitted to state the troubles with which plaintiff was afflicted prior to her fall, the error was without prejudice. He was fully cross-examined with reference thereto, and stated that she had been suffering from tuberculosis for some two years prior to her accident, and that she had had three hemorrhages. He also stated that she had no other trouble prior to her fall upon the sidewalk. True, an objection to a direct question calling for this information was erroneously sustained; but, as the physician practically testified to the same matter without objection, there was no prejudice.

On re-examination the doctor testified that plaintiff had never before the accident been troubled with hysteria, and on cross-examination that she had had no trouble but tuberculosis. This same witness was asked on cross-examination as to whether or not in his opinion plaintiff's injuries were permanent. Manifestly, this was not cross-examination. Rice v. Des Moines, 40 Iowa, 638.

One Ferring was a witness for the plaintiff, and he testified to having slipped and fallen upon the sidewalk at the same place that plaintiff did, and as to the condition of the walk at that place. On cross-examination he was asked if he had ever noticed ice on the sidewalks in Monticello at other places than the one complained of. To this he responded that he had, and he named another place. On re-examination he was asked if the ice at other places was as bad as at the point in question. Objection to this was overruled, and he answered that he did not think it was. The matter was brought out on cross-examination, and plaintiff had the right to re-examine with respect thereto. The question, no doubt, called for an opinion or conclusion of the witness, or rather for a comparison by him; but in view of the nature of the cross-examination and of the answer given by the witness we are not inclined to interfere with the discretion of the trial court in such matters. Collins v. R. R. (N. Y.) 16 N. E. 50. At any rate, the comparison made by the witness with reference to the ice at other places was not prejudicial, save as defendant made it so by insisting upon cross-examining with respect thereto. The mere fact that witness did not think the ice at other places which he had noticed was as bad as at the one in question was immaterial save as it explained his answers given upon cross-examination, and we are not prepared to say that when a matter is brought out on cross-examination, as in the instant case, the party calling the witness may not rebut the inferences which may arise from the cross-examination by calling for the witness' opinion or conclusion. At any rate, the field is left open for such relevant inquiries as the trial court, in its discretion, may think proper.

Defendant's street commissioner was called as a witness for it, and testified regarding the condition and care of the walk at and near the time of the accident. He also testified that he watched the place, and threw ashes upon it, in the winter...