In re Goretska's Estate
| Decision Date | 07 March 1944 |
| Docket Number | 46322. |
| Citation | 13 N.W.2d 432,234 Iowa 1080 |
| Parties | In re GORETSKA'S ESTATE. SORENSON v. COUNSELL. |
| Court | Iowa Supreme Court |
C A. Smedal, of Ames, for appellant.
James L. Cameron and W. H. Soper, both of Eldora, for claimant-appellee.
I. About midnight, May 31, 1942, two automobiles traveling in opposite directions, collided on a highway running east and west from Hubbard to Radcliffe in Hardin County of this state. Each automobile had two occupants and all lost their lives as a result of the collision. The highway at that point was practically level for some distance. It had a black top surface, was 24 feet wide and was in good condition, with a firm, dry surface. One of the automobiles was operated by Lester Sorenson and Irvin Sorenson, a brother, was a passenger. The other was then being operated by Godfrey Goretska, with his wife a passenger. The two vehicles collided "head-on" with such force that the front end of each was crushed and demolished and it required considerable force to pull them apart. The Sorenson car was a Ford coach; the Goretska car was a Plymouth. Both were in good condition before the collision.
Chris Sorenson, father of Irvin Sorenson, was appointed administrator of his estate, and filed a claim for damages against F. J. Counsell, administrator of the Godfrey Goretska estate. Said claim set forth the matters and things on which the same was based, recited the death of Irvin Sorenson in the collision, his freedom from contributory negligence, the negligence of Godfrey Goretska, the result thereof and the damage to the Irvin Sorenson estate. In substance the plaintiff claimed that Godfrey Goretska was negligent in that he failed to turn to the right and failed to yield the north half of the traveled portion of said highway to the car in which Irvin Sorenson, the deceased, was riding. To this claim the administrator of the Godfrey Goretska estate filed a resistance or answer which in effect was a general denial.
The case was tried and the jury returned a verdict in favor of the defendant. Plaintiff moved the court to set aside the verdict and grant a new trial, setting forth twelve grounds in such motion. This motion was sustained generally by the court; the defendant excepted and appealed.
II. The case presents several unusual features. Two cars, each with two occupants, collided. All of the occupants were killed. In the suit brought on behalf of the passenger, Irvin Sorenson, but one ground of negligence was claimed, to-wit, the failure of the driver of defendant's automobile to yield one-half of the right of way. There were no eyewitnesses to the collision. The record fails to show objection to any question, answer, exhibit offered, argument of counsel or instruction given.
When the plaintiff rested and also at the conclusion of all of the testimony defendant moved the court to direct a verdict in his favor. The court overruled these motions and an exception was taken. The cause was then submitted to the jury and its verdict in favor of the defendant was later set aside provoking this appeal.
In his printed brief and argument, appellant has set forth and argued thirteen separate propositions or assignments of error. It is his claim therein that in each the court erred and that by reason of such errors the ruling of the court in granting a new trial should be reversed.
The first proposition set forth by appellant is that the court in the first instance erred in failing to direct a verdict for the appellant when the appellee had rested its main case and also when both sides had rested.
The twelve other propositions of appellant are directed to the various grounds of appellee's motion to set aside the verdict of the jury and grant a new trial. Each of said respective propositions has been specifically set forth and argued.
We do not deem it necessary to take up and discuss these various propositions separately. We will first confine ourselves to a discussion of the first proposition which appellant makes to-wit, that the court erred in not directing a verdict in favor of the appellant. Upon this first proposition of appellant we think that under the record the court did not err in submitting the case to the jury. In fact, in view of the conflict in the evidence we think it would have been error for the court to have ruled otherwise. See In re Younggren's Estate, 225 Iowa 348, 280 N.W. 556; Brunssen v. Parker, 227 Iowa 1364, 291 N.W. 535, and cases there cited. There was but one ground of negligence alleged by appellee and that was the failure of the driver of the Goretska car to yield to the car in which the appellee's decedent was riding one-half of the right of way or traveled track, as provided by law. There was a rather sharp conflict in the evidence as to the exact point at which the collision took place. The surface of this highway was 24 feet wide, was of black top and there was no marked center line. There being no eyewitnesses about all that could be shown were the physical facts appearing after the collision. Various witnesses described the position of the two cars following that time and also certain tracks and skid marks upon the pavement.
Under our holdings the failure to yield the right-of-way is not negligence per se but is simply prima facie evidence thereof. This, when considered in the light of the physical facts appearing in the record, made that issue a jury question. There was some evidence that the car in which Irvin Sorenson was riding was proceeding westward with none of the wheels south of the center of the highway. Other evidence contradicted this. Of course, it is a familiar rule that in passing upon a motion for a directed verdict the court must give favorable consideration to all of the evidence as against the party against whom the motion is directed. In passing upon the motion for a directed verdict, we must not lose sight of the status of the deceased, Irvin Sorenson. He was a passenger in the car, neither owning, operating nor having control over the car in which he was riding. The negligence of his driver if any, or the concurring negligence of the drivers of both of the cars, if any, would not be imputed to him unless he participated therein. Also, his administrator would be entitled to the benefit of the "no eyewitness" rule, under the record in the case. Of course, if the court under the record should have directed a verdict as moved for by appellant, the failure of the court to do so would have been error and the defendant (appellant) would have been entitled to keep his verdict regardless of what followed in the trial of the case.
III. The real and decisive question in this appeal goes to the action of the court in setting aside the verdict of the jury and granting to the appellee a new trial. In fact, most of the argument on both sides is devoted to this question. Both parties recognize the fact that under our holdings a large discretion is vested in the trial court in this matter. Appellant argues that in this case there was an abuse of discretion by the lower court, while appellee argues that the court acted within its power and rights. Both sides cite numerous cases which they claim sustain the position taken by them on that question. In so doing they have set out much of the evidence, some in considerable detail. Much of the detailed evidence has application to the first proposition argued by appellant, to-wit, the failure of the court to direct a verdict in his favor. While we deem it unnecessary to here set out those parts detailed by the parties, we will later in the opinion set out some of the record in order to apply certain legal principles.
It may be helpful to set out some of the statutory law of our state dealing with the matter of setting aside verdicts and the granting of new trials.
Section 11549 of the Code of 1939 defines a new trial to be a re-examination in the same court of the issue of fact or some other portion thereof after a verdict by a jury, report of referee, or a decision by the court.
Section 11550 of said Code sets forth the grounds for a new trial. So far as same is material and applicable to this case, the ground relied upon by the appellee is as follows:
*** Par. 6. "That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law."
Appellee's motion for a new trial, among other grounds, contained the following:
1. The verdict is not supported by the evidence.
2. The verdict is contrary to the evidence.
5. That the uncontradicted and substantiated evidence shows that the plaintiff was entitled to recover and the verdict of the jury was contrary to the evidence.
6. That the verdict returned by the jury fails to do substantial justice but on the contrary is an injustice to the plaintiff.
In addition to the statutory grounds authorizing courts to set aside verdicts and grant new trials, there are decisions from our own court and also from the courts of other jurisdictions holding that in such matters the courts have inherent power to set aside verdicts and to grant new trials.
While the lower court in setting aside the verdict did not act on its own motion but had before it a motion which was sustained in general terms, yet we think that there was involved to some extent in the court's ruling the question of the inherent right or power of the court to take such action.
The theory behind such holdings is the inherent power of courts to act if that power is necessary to prevent miscarriage of law and to promote justice. We call attention to a few of the Iowa cases supporting such power on the part of the court. Allen v. Wheeler, 54 Iowa 628, 7 N.W. 111; Hunt v. Des Moines City R. Co., 188 Iowa 1068, 177 N.W. 48; Brunssen v. Parker supra. In ...
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