Hubby v. State

• Decision Date: 16 March 1983
• Docket Number: No. 67572,67572
• Citation: 331 N.W.2d 690
• Parties: Chloris Ann HUBBY as Executor of the Estate of Merlin Lee Hubby, Deceased, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 690

331 N.W.2d 690

Chloris Ann HUBBY as Executor of the Estate of Merlin Lee Hubby, Deceased, Appellant, v. STATE of Iowa, Appellee.

No. 67572.

Supreme Court of Iowa.

March 16, 1983.

Kirke C. Quinn of Doran, Doran, Courter & Quinn, Boone, for appellant.

Thomas J. Miller, Atty. Gen., John R. Scott, Sp. Asst. Atty. Gen., and Jon K. Swanson, Asst. Atty. Gen., for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, LARSON, SCHULTZ, and CARTER, JJ.

SCHULTZ, Justice.

This appeal involves issues arising from a wrongful death action commenced as a result of a motorcycle-automobile accident which claimed the life of plaintiff's decedent, Merlin Lee Hubby. Plaintiff, Chloris Ann Hubby, as executor of decedent's estate, brought an action against the State alleging that officers of the Iowa Highway Patrol were negligent in conducting a speed check and proximately caused the fatality. Following a trial to the court, the trial court found that the officers were negligent, but denied recovery because the decedent was contributorily negligent in failing to maintain a proper lookout. Plaintiff appealed and the court of appeals held the trial court erred by using an incorrect test to determine proper lookout, and by considering certain expert witnesses' testimony concerning experiments and conclusions of law. It reversed and remanded to the trial court with instructions to reconsider the present record in conformance with its opinion. We granted the State's application for further review. We vacate the decision of the court of appeals and affirm the judgment of the trial court.

On the morning of August 24, 1979, three Highway Patrol officers were conducting a speed check on a portion of a four lane divided highway, U.S. 30, in Story County. The weather was clear and the sun was bright. From a patrol aircraft, officer David Reynolds clocked the speed of eastbound vehicles as they passed through timing lanes. He radioed the color and number of vehicles to be stopped to officers Gerald Skahill and Clay Frederick North, Jr. North and Skahill were standing on the highway about three-fourths of a mile east and beyond a major curve from the timing area. Their patrol cars were parked front-to-rear on the south shoulder of the highway and they received Reynolds' information through a loudspeaker located in one of the patrol cars.

Shortly before ten a.m. Reynolds radioed that a white car was to be stopped. North walked to the middle of the highway and waved the white car to the shoulder behind the patrol cars. While North was speaking to the driver, Reynolds radioed that an orange semi-truck was to be stopped. The semi was following a blue-over-white oldsmobile driven by Georgia Bozich (Bozich vehicle) and began to pull into the left lane to pass that car as they came alongside Skahill. Using one hand Skahill pointed upward to the semi driver, motioning him to the shoulder. With his other hand Skahill motioned Bozich to proceed. Both drivers testified they were confused by the signals. The semi, traveling about 30 miles per hour, completed its pass and pulled over to the south shoulder of the highway about 200 feet east of Skahill's patrol car. Before getting into his car, Skahill saw Bozich two car lengths ahead of his car and motioned to her to proceed. Skahill then moved his car up to the rear of the semi, passing Bozich on the way. He then got out of the car and met the semi driver at the rear of the semi. At that point he heard the motorcycles driven by Merlin Hubby and Brian Carrel.

Meanwhile, again responding to Reynolds, North had walked to the middle of the road to stop a red car. He saw the motorcycles approaching from the west pass him in the south lane. North directed the red car to a position behind the white car and walked back to the white car. He then heard a noise and turned around in time to see Hubby fly through the air over the Bozich vehicle after his motorcycle had struck the rear of that car.

The lead motorcycle, driven by the decedent, collided with the Bozich vehicle in the south lane of traffic parallel to the front axle of the semi. Immediately thereafter, Carrel, who was traveling behind Hubby, placed his motorcycle down and slid sideways on the highway until he came to rest near the point of the collision.

Conflicting testimony was given as to whether the Bozich vehicle had always proceeded forward, stopped, pulled off the shoulder, or had driven in reverse. Officer Reynolds testified that the Bozich vehicle may have stopped momentarily by the patrol cars, but he did not see it pull over. The driver of the white car stated that the Bozich vehicle was partially on the shoulder, and Carrel indicated the Bozich vehicle pulled in front of Hubby, presumably from the shoulder of the highway. Bozich testified she stayed in the south lane at all times until the collision and that her lowest speed was twenty miles per hour. An expert witness estimated it would have taken approximately twenty-seven seconds from the time the signals were given by Skahill until the collision occurred. This expert also testified that the Bozich vehicle could have been traveling in reverse at the time of impact.

The trial court found that plaintiff met her burden of showing that the patrol officers were negligent in the conduct of the speed check and that they violated their duty of care to decedent. The evidence amply supports this finding. Due to the close proximity of the officers, the number of vehicles, and the confusing hand signals, the scene bore an unfortunate resemblance to a three-ring circus.

The trial court also found that the State met its burden of showing that decedent was contributorily negligent in failing to keep a lookout. Plaintiff disputes this finding and assigns error on the following points: (1) the sufficiency of the evidence to support the finding of improper lookout, (2) a failure to find proximate cause, (3) the refusal to allow the officers to be examined as adverse witnesses, (4) the admission of expert testimony on required degree of care, (5) admission of opinion from an expert based on hypothetical question containing matters based on hearsay that were not in the record, and (6) admission of an experiment performed by the officers.

Prior to addressing the plaintiff's contentions, we must resolve the issue concerning lookout. On the lookout issue the court of appeals understood the plaintiff to claim that the trial court applied the wrong test for lookout in finding contributory negligence. Our review of the brief causes us to conclude that plaintiff confined her claim of error to the sufficiency of the evidence to support the court's finding. Plaintiff's brief raises only the sufficiency issue; there is no argument that the trial court applied the incorrect test. The brief point finally contends that "the record is absolutely void of any substantial evidence which would lead the trial court to come to the conclusion that the plaintiff's decedent failed to maintain a proper lookout." We must decide the propriety of expanding plaintiff's issue of insufficiency of the evidence to prove improper lookout to an issue that concerns the application of an incorrect test to determine improper lookout.

Appellate review of a trial court's ruling on a claim under the tort claims act is by determination of assigned errors at law. Wernimont v. State, 312 N.W.2d 568, 570 (Iowa 1981). On a review of a law action tried to the court, appellate review is not de novo, but is confined to errors assigned. Carson v. Mulnix, 263 N.W.2d 701, 705 (Iowa 1978); Herman Ford-Mercury, Inc. v. Betts, 251 N.W.2d 492, 493 (Iowa 1977); Rector v. Alcorn, 241 N.W.2d 196, 200 (Iowa 1976). Moreover, issues are deemed waived or abandoned when they are not stated on appeal by brief; random discussion of difficulties, unless assigned as an issue, will not be considered. Iowa R.App.P. 14(a)(3); McCleeary v. Wirtz, 222 N.W.2d 409, 415-17 (Iowa 1974).

As the plaintiff failed to raise an issue concerning the trial court's application of the proper test for lookout, we shall not consider the issue on appeal. We shall confine our review to the issue raised by the plaintiff.

I. Lookout. Plaintiff claims there was insufficient evidence to support the trial court's conclusion that decedent was contributorily negligent in failing to maintain a proper lookout. We disagree.

Findings of fact in a law action are binding upon the appellate court if supported by substantial evidence. Iowa R.App.P. 14(f)(1). We must construe the evidence in the light most favorable to the trial court's judgment, and this court will not weigh the evidence or pass on the credibility of witnesses. A finding of fact is supported by substantial evidence if the finding may be reasonably inferred from the evidence. Briggs Transportation Co. v. Starr Sales Co., 262 N.W.2d 805, 808 (Iowa 1978).

The trial court correctly stated the standard of proper lookout when it relied on the following quotation:

The duty to maintain a proper lookout implies being watchful of the movements of the driver's vehicle in relation to other things seen and which could be discerned or seen in the exercise of ordinary care. It requires the care, watchfulness and attention of the ordinarily prudent person in the circumstances. Bradt vs. Grell Construction, Inc., 161 N.W.2d 336, 341 (Iowa 1968).

The testimony and circumstantial evidence provide ample support for the trial court's finding. The weather was clear and Hubby had an unobstructed view of the roadway. Hubby did not apply his brakes. Bozich testified she was at all times on the highway and the officers' testimony was to the same effect. While we might wish to dispute the credibility of some of the witnesses and give little weight to their testimony, we may not invade the function of the trial judge. There is ample evidence that decedent did not exercise ordinary care by being reasonably watchful and attentive when he...