Janvrin v. Broe

• Decision Date: 02 August 1948
• Docket Number: 47250.
• Citation: 33 N.W.2d 427,239 Iowa 977
• Parties: JANVRIN v. BROE.
• Court: Iowa Supreme Court

33 N.W.2d 427

239 Iowa 977

JANVRIN v. BROE.

No. 47250.

Supreme Court of Iowa

August 2, 1948

[Copyrighted Material Omitted]

R. G. Remley, of Webster City, for appellant.

Phelan Karr & Karr, of Webster City, for appellee.

BLISS Justice.

The collision occurred in the business section of Webster City, on February 18, 1947, about 1 P.M., on the south half of Second Street an east-west street, at a place immediately east of its right-angle intersection with Des Moines Street. There were red and green stop and go signals at the intersection. The only allegation of negligence in the petition is thus stated, with certain immaterial deletions: 'Defendant had his automobile parked on the south side of Second Street, and plaintiff was driving his automobile east on said street. Defendant drove his automobile in such a negligent and careless manner in an attempt to come from the curb into the line of traffic, that a collision was caused between the right front portion of plaintiff's automobile and the left front portion of defendant's automobile. Defendant had the sole management and control of his automobile and is responsible for its operation and defendant operated his automobile in such a careless and negligent manner as to permit it to come in collision with plaintiff's automobile.' He alleged freedom from contributory negligence. With respect to his damages plaintiff alleged that 'damage was sustained by plaintiff and he was further damaged by the loss of the use of his automobile until it could be repaired. Total damage to his person and car is $500.' He asked judgment for that sum. A motion of defendant for more specific statement of the allegation of damages was complied with under order of the court, by this amendment: 'That plaintiff was damaged $50 by the loss of the use of his automobile until it could be repaired. $250 damages to his car and $200 to his person by shock and the trouble brought about by the accident.'

Defendant by answer admitted the parking of his car and the collision at the time and place alleged and denied all other allegations of the petition. In his counterclaim he asked judgment for $25 for damages to his car.

At the close of plaintiff's case defendant's motion for a directed verdict was overruled. His motion to withdraw from the jury the issue as to personal damages, damages in the sum of $50 for loss of the use of the car, and any claim for damages to the car in excess of $85.20, was sustained in part and overruled in part.

The court ruled that there was no evidence upon which the jury could base a verdict for personal injuries. Respecting the loss of the use of the car, the court stated that while the evidence was not strong, yet it was sufficient to take the issue to the jury. As to the car damage the court ruled that the claim therefor in excess of $85.20 was withdrawn.

The parties agreed that at the time and place of the collision a valid ordinance permitted double parking for a period not to exceed five minutes. Defendant's evidence consisted only of his own testimony. The expense of repairing his car was $4.25. There was no rebuttal testimony. Defendant then renewed his motion for a directed verdict. It was denied. The court on its own motion withdrew the defendant's counterclaim for the stated reason that defendant had not shown himself free from contributory negligence in that the evidence conclusively showed that he had not given the statutory arm or horn signal before moving from a parked position into a line of traffic. Defendant contended that the question of his contributory negligence was for the jury. The court answered that, with respect to the counterclaim, defendant was contributorily negligent as a matter of law since he violated a statute. Continuing, the court said: 'What I am trying to tell you is this: I don't know whether you and I see alike or not, but where the defendant violates the statute and that is interwoven into the accident itself, the defendant has failed in his burden to prove himself free from negligence so it bars his recovery on his claim, his $4.25 claim, but that does not establish the negligence so far as the plaintiff's claim is concerned. The plaintiff still has to prove that. We are arguing over a $4.25 counterclaim.'

The case was submitted to the jury solely on the issues raised by the petition and denied by the answers, that is, the defendant's negligence, the plaintiff's freedom from contributory negligence, and the matter of damages. Recovery of damages was limited solely to loss of the use of plaintiff's car, and the expense of repairing it in an amount not to exceed $85.20. The evidence showed conclusively that plaintiff paid such sum for repairs, and there was no evidence that the charge was unreasonable. It was likewise shown that plaintiff was without the use of the car for a few days, and there was some evidence of the value of that use. In returning a verdict for the defendant the jury must have found and concluded that the plaintiff either caused, or contributed to, by his own negligence, any damage which he sustained, or that any negligence of defendant was not the proximate cause.

Plaintiff submitted no requested instructions. Plaintiff excepted to the sixteen instructions, as a whole, and to seven of them specifically. His motion for new trial contained twenty-eight grounds. The court overruled each of them specifically, and we think rightly. Fifteen errors are assigned for reversal, and are argued at length. They do not entitle plaintiff to a reversal. We will not discuss all of them.

There is no material controvery over the facts. It appears that defendant, 71, drove his car east on the south side of Second Street. Just east of the Des Moines Street intersection he stopped his car a short distance from the curbing in the second parking lane to let his wife get out to go into a store. There was no car parked between his car and the curb, and none were parked back or west of him along the curb or in the second parking lane. But another car was parked in front of him in the second parking lane. He had no intention of leaving his car where he had stopped, but intended to drive to the bank. Because of the car parked ahead of him it was necessary for him to turn his car to the northeast to get into the lane of traffic. He first looked left to his rear and saw no cars approaching from the west on Second Street. There is no evidence that there were any. He then entered the traffic lane moving slowly. He gave no arm or horn signal of this movement. In the meantime, the plaintiff, 72, a retired gentleman, when the green light came on, entered the street intersection just back of defendant's car, from the north on Des Moines Street, and proceeded east on Second Street, at a speed of five or ten miles an hour. Second Street is 54 feet wide between the curbs. Plaintiff's car had gone about 45 feet east when it contacted defendant's car before it had fully entered the lane of traffic, and pushed it sideways into the car which was parked just ahead of it to the right. As plaintiff's car proceeded ahead a few feet before stopping, the front bumper of defendant's car caught under the right front fender of plaintiff's car and loosened it from the body. When plaintiff's car stopped its left front wheel was at about the center line of the street. There was a truck parked along the north curb. Defendant testified that this truck was twenty feet north of his car leaving ample room for plaintiff's car to pass eastward. Plaintiff testified that he had no recollection of seeing defendant's car and the first time he was conscious of it was at the time of the impact.

I. Plaintiff complains because the issue of personal injury was not submitted to the jury. There is no basis for the complaint. He alleged no specific personal injury in his petition. In Exhibit 'A,' a report he made to defendant's insurer, he stated that no person was injured. As a witness, he was not certain that he claimed such damages in his petition. He testified: 'I just told you I didn't receive any personal injury. I ain't got no claim there for personal injuries according to that paragraph (in the petition) I just read. * * * I wasn't personally damaged. That is the way you figure it, merely anxiety, I presume, not exactly any grief to it though. Anxiety of getting things fixed up and started over again. * * * I did feel shocked and excited right after the accident. * * * I was sure surprised that I had this collision because I wasn't expecting it. That is what I mean by the word 'shocked'. I was surprised having my car hit. * * * Most of the worry was running around for the next three or four days trying to figure out how long I had to have the car laying around before I could make proper use of it.' If there were any error in not submitting this issue, it was cured by the verdict for defendant that plaintiff was entitled to no damages.

II. Plaintiff repeatedly urged that defendant admitted in his answer that he was negligent. Plaintiff contended that the court erred in submitting the issue of defendant's negligence to the jury, because of this alleged admission. Defendant's answer does not sustain the construction which plaintiff places upon it. It is true that one part of the answer is carelessly worded, but in other paragraphs any negligence of defendant is clearly and expressly denied. In ruling upon the motion for new trial, the court said: 'The court is unable to ascertain from the pleadings that the admissions claimed to have been made in the defendant's answer are borne out by the record.' The pleading was in no way challenged.

The true meaning of the pleader is to be gathered from the pleading as a whole and from a fair and reasonable construction of its language....