Hutchinson v. Fort Des Moines Community Services, Inc.

• Decision Date: 07 February 1961
• Docket Number: No. 50238,50238
• Parties: Tom C. HUTCHINSON, as Administrator of the Estate of Margaret Anne Hutchinson, Deceased, Appellant, v. FORT DES MOINES COMMUNITY SERVICES, INCORPORATED, Appellee.
• Court: Iowa Supreme Court

Page 567

107 N.W.2d 567

252 Iowa 536

Tom C. HUTCHINSON, as Administrator of the Estate of Margaret Anne Hutchinson, Deceased, Appellant, v. FORT DES MOINES COMMUNITY SERVICES, INCORPORATED, Appellee.

No. 50238.

Supreme Court of Iowa.

Feb. 7, 1961.

Jones, Rockwell & Oliver, Des Moines, for appellant.

Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellee.

LARSON, Justice.

Twice previously this case has been considered by us. See Hutchinson v. Des Moines Housing Corp. et al., 248 Iowa 1121, 84 N.W.2d 10, and Hutchinson v. Des Moines Housing Corp. et al., 250 Iowa 1306, 99 N.W.2d 81. A similar case was before us in Tedrow v. Des Moines Housing Corp. et al., 249 Iowa 766, 87 N.W.2d 463.

Substantially the same facts, including an appropriate plat, appear in 250 Iowa 1306, 1310, 99 N.W.2d 81, and it seems unnecessary to repeat them here. As a result of previous decisions, the sole defendant herein is the Fort Des Moines Community Services, Incorporated, a nonprofit corporation which formerly conducted community services for residents of the Fort Des Moines Housing Area. It leased Building 318 from the Des Moines Housing Corporation. Plaintiff alleged that defendant was negligent in allowing pennies to be placed in the fuse sockets of a fuse box on the premises, creating a dangerous condition and fire hazard proximately causing the fire and death of Margaret Anne Hutchinson. Complying with our previous direction, these issues were submitted to a jury and it returned a verdict for defendant. The trial court overruled plaintiff's motion for a new trial, and he appeals.

Specifically, plaintiff contends the trial court erred in failing to grant a new trial on the grounds (1) that the verdict was the result of passion and prejudice, (2) that the verdict is contrary to the law and not supported by the evidence, (3) that certain members of the jury falsely answered certain questions during voir dire examination, (4) that statements made in the jury room were prejudicial to plaintiff's case and were outside the record, and (5) that the trial court erred in failing to grant plaintiff a new trial because of the bailiff's failure to notify the judge and counsel of the jury's request to have certain testimony re-read to it. In other words, he says the court erred in refusing him a new trial upon his showing of misconduct by two jurors, the entire jury, and by the court bailiff.

In his brief and argument plaintiff assigns as error, but does not argue, that the verdict was the result of passion and prejudice. He simply states: 'Appellant is not complaining about the rulings of the trial court, except ruling on motion for new trial, but taking the whole record and the things that occurred in the jury room, such as the undisputed evidence tending to prove plaintiff's case, the fact that certain jurors made detrimental statements during deliberation, and the prejudicial actions of the bailiff, plaintiff is certainly entitled to a new trial.'

He argues the record discloses that one or more jurors did not truthfully answer questions put to them by counsel on the voir dire examination, that the bailiff arbitrarily refused to notify the court of the jury's request for clarification of certain testimony, and that when all the facts were considered, plaintiff was so greatly prejudiced that a denial of his motion for a new trial was reversible error.

In overruling plaintiff's motion for a new trial, the learned district court said: 'Under the entire record, the Court is convinced the verdict of the jury was given after due deliberation and the verdict was not the result of passion and prejudice. The Court is convinced the verdict returned in this case is not contrary to law and is supported by the evidence. It appears * * * there is no evidence of any false swearing on voir dire examination nor is there any evidence that the verdict is based on any inconsequential statements made in the Jury Room. As to the statement of one of the jurors that they would like to have the court reporter read some of the testimony or that they would like a transcript of some of the testimony, it is the Court's conclusion that the bailiff followed the Court precedent set over a period of many years in this judicial district (in) not making a specific reference to said request to the presiding judge.' The court then concluded: '* * * if said request had been passed on to this Court as has been done on previous occasions, said request would have been refused by the Court and only taken up by the Court if the jurors remained in the jury room for an extremely long period of time.'

I. This court is committed to the rule that we will not ordinarily interfere with the sound discretion of the trial court in granting or denying a new trial. It must appear clearly that there has been an abuse of the discretion lodged in the trial court before this court will interfere with the lower court's ruling. Morton v. Equitable Life Ins. Co., 218 Iowa 846, 254 N.W. 325, 96 A.L.R. 315. We said in Jordan v. Schantz, 220 Iowa 1251, 1257, 264 N.W. 259, 262: 'It is well settled in this state that the trial court has a wide discretion in the matter of granting new trials in jury cases, and that an order of court granting a new trial will not be interfered with on appeal except where it clearly appears that there has been an abuse of that discretion.' Also see United States v. Campbell, D.C.N.D.Iowa, 138 F.Supp. 344; Annotation 50 A.L.R.2d 176, 181, 188. This rule was recently recognized in Wilson v. Iowa State Highway Commission, 249 Iowa 994, 1000, 1001, 90 N.W.2d 161, 165. We said therein that even though no single ground be sufficient in itself, yet, if when considered together, all will reasonably support the trial court's conclusion that a fair trial has not been had, the trial court's order will be sustained, but as to the extent and scope of the trial court's discretion it was said: 'We recognize that the trial court has a wider discretion in granting new trials than this court has.' This is especially true as to a general allegation of unfairness.

It was not only appellant's burden to disclose and prove facts which were sufficient to sustain the trial court's action, had it granted a new trial, but he is also required to show here an abuse of the trial court's discretion in refusing to grant a new trial. While he may have sustained his burden as to the first requirement, he failed in the latter.

The issues as to defendant's negligence and the cause of the fire that destroyed Building 318 were issues of fact for the jury under the record. The evidence was much the same as that in the case of Hutchinson v. Des Moines Housing Corp. et al., supra, 250 Iowa 1306, 99 N.W.2d 81, and it was our holding therein that those were fact questions for the jury. It is the law of the case. McKlveen v. Townley, 233 Iowa 328, 331, 332, 7 N.W.2d 186; Glanville v. Chicago, R. I. & P. R. Co., 196 Iowa 456, 458, 193 N.W. 548; Hanson v. Cline, 142 Iowa 187, 190, 118 N.W. 754; 3 Iowa Digest (West's), Appeal and Error, k1195.

We pointed out in the previous Hutchinson case [250 Iowa 1306, 99 N.W.2d 84]: 'Three competent and qualified experts testified, and the evidence offered is sufficient to require submission to the jury as to Community Services, Inc.' In the case at bar Lagerstrom, Nelson and Herron again testified for the plaintiff, and Brown and Vetersneck again testified for defendant, substantially as they had in the previous trial. These experts differed as to whether the proximate cause of the fire was the pennies placed back of the fuses. Of course the jury was not compelled to take the views of these experts, nor to accept plaintiff's evidence that no rags, oil, or cigarette butts were left in the tavern when it was closed for the night. Appellant concedes in argument that 'some points of our theory of causation' are based on circumstantial evidence, but argues his over-all evidence is sufficient to justify a verdict in his favor. Unquestionably it is, but the jury was not compelled to so find, and was not required to accept plaintiff's theory even if his evidence was strong. We are satisfied, as we were in the first case, that plaintiff made out a case against the defendant sufficient to go to the jury, but that does not mean it was required to find in his favor. In other words, this court cannot say as a matter of law that such a verdict was not proper or that the trial court's discretion in refusing a new trial on that ground alone was error. Apparently plaintiff does not so contend, but believes when that evidence in his favor is given the weight to which it should be entitled, and is connected with other alleged irregularities, its significance and importance on the question of a fair trial becomes most evident.

II. The other alleged irregularities, plaintiff contends, were proven by affidavits and by testimony offered at the hearing on his motion. This evidence of misconduct, he says, compels a finding that the trial was unfair. We cannot agree. Proof of such alleged misconduct is indeed somewhat less than compelling.

The voir dire examination was not reported and we find no bill of exceptions was ever filed as provided for by R.C.P. 241, 58 I.C.A. Plaintiff relies, as he must, upon the testimony of Mr. Rockwell, associate counsel for plaintiff who was present during the examination, and Mr. Antomori, one of the selected jurors. In addition, he produced an affidavit of Juror Louise Wykoff as to what was said by Jurors Warren and McCoy during the deliberation. This evidence, he says, proves the answers given by Warren and McCoy in voir dire examination were false, and concludes therefrom that their minds were made up before the trial. He argues that had truthful answers been given in voir dire examination they would have been challenged for cause. Without conceding the fact that knowledge as to how this or the Tedrow case came out is sufficient...