In re Murray's Estate

• Decision Date: 11 February 1947
• Docket Number: 46975.
• Citation: 26 N.W.2d 58,238 Iowa 112
• Parties: In re MURRAY'S ESTATE. PARSONS v. FIRST NAT. BANK OF FAIRFIELD.
• Court: Iowa Supreme Court

26 N.W.2d 58

238 Iowa 112

In re MURRAY'S ESTATE.

PARSONS v. FIRST NAT. BANK OF FAIRFIELD.

No. 46975.

Supreme Court of Iowa

February 11, 1947

Ralph H. Munro, of Fairfield, for appellant.

Booker Smith and Thoma & Thoma, all of Fairfield, for appellee.

GARFIELD Justice.

On May 1 1945, about 3 p. m., Buford Murray shot himself through the forehead with a .22-caliber rifle in the dining room of Harry Parsons' farm home where he had been a guest since the evening of April 29. Parsons, 71, his wife, 64, and their unmarried daughter Isabelle, 25, were at home at the time but did not witness the shooting. Murray died about an hour later, soon after he was taken to a hospital in Fairfield.

Mr. and Mrs Parsons and Isabelle each filed claim in probate against the administrator of Murray's estate for $5000 for 'nervous shock and personal injuries sustained because of the wilful act of Murray in committing suicide in the Parsons home.' See, as bearing on the claims filed, Blakeley v Estate of Shortal, 236 Iowa 787, 20 N.W.2d 28. The claims of Mr. and Mrs. Parsons were later assigned to Isabelle and the three claims consolidated for trial. The jury returned a lump sum verdict of $4000 on the three claims. On motion of the administrator the court set aside the verdict and granted a new trial. Claimant has appealed.

The motion for new trial contains eleven grounds. Apparently pursuant to Rule 118, Rules of Civil Procedure, the court sustained certain grounds. Those which were sustained allege (1) the verdict is not sustained by the evidence and (2) is so excessive as to show passion and prejudice, and (3) misconduct of the jury in considering matters not in evidence--that decedent had no close relatives and had on his person a large amount of cash or bonds when he committed suicide. The above grounds substantially conform to some of the causes for new trial enumerated in Rule 244, Rules of Civil Procedure, which superseded section 11550, Code 1939.

It is plain the court felt the award was excessive and there was misconduct of the jury calculated to and which did affect the verdict. The court also said in his ruling he should have required the jury to fix the amount of damages on each of the three claims even though no request was made therefor. However, the grounds of the motion which alleged the court's failure in this regard were not sustained--whether from mistake or otherwise does not appear. The court also expressed the opinion, since he had knowledge decedent left no direct heirs and had a very substantial estate, he should have given some cautionary instructions. This, however, was not one of the grounds of the motion for new trial.

We are inclined to affirm the court's ruling. The trial court has a wide discretion in the matter of granting a new trial upon such grounds as are here involved. We interfere reluctantly and infrequently with the exercise of such discretion especially where a new trial is granted rather than denied. Only a clear showing of abuse of discretion will justify such interference. Cases where the trial court erroneously determines a question of law in granting a new trial obviously differ from the one now before us. Such cases present primarily the law question involved rather than the exercise of discretion. Kessel v. Hunt, 215 Iowa 117, 123, 244 N.W. 714.

Of course it is true, as appellant argues, the assessment of unliquidated damages is peculiarly within the discretion of the jury. But that discretion is not unlimited although courts usually will not interfere unless the verdict is so large or so small as to shock the conscience. Remer v. Takin Bros. Freight Lines, 230 Iowa 290, 294, 297 N.W. 297, 298, and cases cited. In the Remer case upon which appellant relies, defendant appealed after two verdicts had been returned in plaintiff's favor in substantially the same amounts and each verdict had been approved by a different trial judge. Obviously the case is not applicable here.

While we have frequently said a verdict should be set aside which is so large or so small as to shock the conscience, it appears from many of our decisions this is not the sole test. A trial court should grant a new trial where it appears the verdict does not effectuate substantial justice or the jury, from any cause, has failed to respond truly to the real merits of the controversy.

The above views are fully discussed and numerous authorities in support thereof are cited in Re Estate of Hollis, 235 Iowa 753, 16 N.W.2d 599; In re Estate of Goretska, 234 Iowa 1080, 13 N.W.2d 432. See also 39 Am.Jur. 199, 200, sections 201, 202.

Aside from the grounds for new trial prescribed by rule, the trial court has inherent power on its own motion, after reasonable notice to the parties and opportunity to be heard, to set aside a verdict and grant a new trial where a party has not received a fair and impartial trial. See cases cited last above; also Brunssen v. Parker, 227 Iowa 1364, 291 N.W. 535, and cases cited; 39 Am.Jur. 37, § 9. It has been said, however, this power should be exercised with great caution and in aggravated cases only. Hensley v. Davidson Bros. Co., 135 Iowa 106, 110, 112 N.W. 227, 14 Ann.Cas. 62; 39 Am.Jur. 38, § 10.

We will briefly discuss the evidence which bears on the measure of damages. Claimants and decedent were friends of long standing. Decedent had been a frequent visitor in claimants' farm home. Mr. Parsons was at the barn, Mrs. Parsons and Isabelle were upstairs in bed when decedent shot himself. Mrs. Parsons heard the body crash to the floor but apparently did not hear the rifle shot. Isabelle 'jumped out of bed and hollered 'what is the matter'.' Mrs. Parsons dressed partially, went downstairs and saw Murray lying in a pool of blood, unconscious and moaning. She dashed outdoors, called her husband who hurried to the house and both returned to the dining room where decedent lay.

The daughter came downstairs, witnessed the scene and then 'rushed in the other room.' Mrs. Parsons telephoned for the family doctor and the sheriff. The doctor arrived in about 15 minutes, the sheriff and his deputy perhaps a half hour later. The doctor estimates the pool of blood around decedent's head as about three feet in diameter. The deputy sheriff says 'It was a small wound. A .22 rifle would retain most of the blood in the body. It was just trickling out. * * * It wouldn't bleed over a pint, I don't think. There was a small pool of blood about a foot across.' Mr. Parsons testifies, however, 'Lots of blood coming out, oh it just run, and it was all over the room there.'

Decedent was removed in an ambulance, apparently under the direction of the doctor and sheriff, from the Parsons home to a hospital in Fairfield five miles distant. None of the claimants accompanied the dying man on this trip. A few minutes after arrival at the hospital Murray died.

None of the claimants suffered any physical injury in the ordinary sense. There is no evidence of damage from loss of time, medical or hospital attention or the like. Such damage as claimants suffered resulted from the shock of seeing or hearing what transpired.

Mr. Parsons says, 'I have seen blood, that is nature, that didn't bother me, that part of it. The effect of seeing Murray lying in the dining room was, well, not very good. You wouldn't like anything like that yourself. * * *

'Q. * * * What actual injury did it do to you? A. Why, I just couldnt't tell you that. * * * After they took the body out of the house, well, I went back and finished my chores. * * *

'Oh, yes, it did affect my nerves to a certain extent, and I couldn't sleep as good for it at all.'

Mrs. Parsons testifies:

'Q. Tell us exactly what you can't do now that you could do before Mr. Murray's death? A. I can't compose myself, which is physical. I am not--I am physically and mentally not like I used to be. Well, I can't do what I used to do in any form. I can do easy work, but I haven't got the ability nor I can't--I can't express myself as I did--it just seems to me that I have just lost something, and I wish somebody would tell me what it is.'

Principal emphasis at the trial was upon damage claimed to have resulted to Isabelle. She was not present at the trial nor did she testify by deposition. She was then visiting her brother's wife in Chicago and helping care for a newly-born niece. The family doctor says, 'I don't think the daughter's condition now would be fit for her to be on the witness stand. I think it would affect her general health.' (Nine months elapsed between the shooting and the trial.)

Isabelle had suffered from nervous trouble since about five years before the occurrence in question. It was then necessary for her to discontinue college and after that she had no employment. She had been examined at Iowa City and Kirksville. Missouri, but could not learn what caused her nervous condition. The father and mother testify in substance that the experience here involved intensified her trouble. 'She was afraid to sleep in the room by herself or put the car in the shed.'

The family doctor says, 'I don't see any difference as to Harry (Parsons) since that time. His wife seems more nervous * * *. Well, I would say they (Mrs. Parsons and Isabelle) are more nervous or unstable. I don't know of anything that caused it except the suicide in the house. * * *

'I think Mrs. Parsons was in about twice since Mr. Murray's death. The rate of treatments I have given these women both before and after Mr. Murray's death has been practically the same. * * * These tonics I gave Mrs. Parsons and the girl were the same kind I gave them before the death of Mr. Murray. Whatever treatments I gave, I continue to give the same treatment.'

The deputy sheriff testifies, 'I thought they...