Jettre v. Healy, 48363

• Decision Date: 20 October 1953
• Docket Number: No. 48363,48363
• Citation: 60 N.W.2d 541,245 Iowa 294
• Parties: , 36 A.L.R.2d 531 JETTRE v. HEALY et al.
• Court: Iowa Supreme Court

Page 541

60 N.W.2d 541

245 Iowa 294, 36 A.L.R.2d 531

JETTRE v. HEALY et al.

No. 48363.

Supreme Court of Iowa.

Oct. 20, 1953.

Rehearing Denied Dec. 18, 1953.

Andrew Bell and Page & Nash, Denison, for appellants.

Edson, Edson & Hamilton and C. Wendell Pendleton, Storm Lake, and E. A. Raun, Denison, for appellee.

LARSON, Justice.

In an action for damages on account of the death of plaintiff's decedent as a result of a collision between a gravel truck operated by plaintiff's decedent and a Chevrolet automobile owned and operated by defendant's decedent, the jury returned a verdict for plaintiff in the sum of $20,000. Defendant appealed upon the overruling of a motion for a new trial by the trial court. We shall refer to the parties as plaintiff and defendant herein.

Defendant assigns three errors as a basis for reversal, two of which relate to the credibility of a witness, and the third to the amount of damages. Defendant also claims error by the trial court for refusing a new trial upon these grounds.

Briefly, the facts disclosed by the record are as follows:

At an intersection of Crawford County Road K, which is a gravel north and south road, about 24 feet wide, and an unimproved, undesignated east and west road, some five or six miles north of Vail, Iowa, the gravel truck operated by plaintiff's decedent collided with a Chevrolet automobile driven by defendant's decedent. Both drivers were alone and were instantly killed. The intersection was at the bottom of two hills, the crest of which toward the south was some three blocks, and toward the west was a little less distant, but not as steep. There was a stop sign on the eastwest road west of the intersection, and most of this dispute centers on whether or not defendant's decedent stopped before entering the intersection where the accident occurred. There was one eye-witness, Godfrey Preuss, a farmer residing on a farm, the dwelling of which is some 20 rods north and east of the intersection. It appears, according to his testimony, that he and Mrs. Preuss were cleaning or fixing the family car about 5 o'clock p. m. on the 27th day of August, 1951, when his attention was called to the approaching vehicles; that he observed the car driven by defendant's decedent first, and later the truck driven by plaintiff's decedent; that he saw them come together, turn over, and land in the ditch north and east of the intersection; that the defendant's decedent did not stop at the stop sign, was driving about 15 or 20 miles per hour when entering the intersection, and that the truck was going about 50 miles per hour until just before the crash when its brakes were applied. Various pictures were received in evidence by stipulation showing the intersection and approaches from various angles. It was testimony concerning the observation of witness Preuss that defendant complains of and assigns one claim of error. Plaintiff's decedent, 30 years of age, was employed as a truck driver and equipment man, was married, and had one child. Defendant's decedent was a retired farmer and a bachelor 62 years of age.

I. Defendant contends that the verdict was the result of false testimony on a material matter by the eye-witness Preuss, knowingly used by plaintiff, and that the trial court abused its discretion in not granting a new trial on account thereof. This contention is based on what defendant maintains is a change in his testimony from that given on the first trial of this case, in which trial the jury disagreed. The testimony of witness Preuss in this trial was that he watched the car driven by Joe Healy, the defendant's decedent, continually as it approached the intersection, and that except when it went behind a tree in the pasture, it was never out of his sight. Upon cross-examination he was asked if in the first trial he did not state in the cross-examination as follows:

'Q. And from that time on you could see the car all the way? A. Up to the stop sign.

'Q. And then is when you took your eyes off from it and saw the truck coming? A. Just a second, yes.

'Q. I assume you looked back and saw the car again then? A. Yes, I glanced back.

'Q. And at that time the car was east of the stop sign, was it not? A. Yes.'

When asked if he remembered those questions and answers, he stated: 'I must have been confused at that time,' and 'I claim, in spite of my previous testimony, that I didn't take my eyes off the car any time after I first saw it.' Witness Preuss maintained this position throughout vigorous cross-examination before the jury and again in the hearing held on the motion for a new trial before the court.

In the first place there are grave doubts in our minds that the testimony of this witness was changed, but be that as it may, it is the testimony in the last trial that concerns us, especially when the alleged contradiction in testimony was called to the attention of the jury, as it was here. We have said that in the first instance there is a presumption that the witnesses are truthful. Windahl v. Hasselman, 198 Iowa 1001, 1005, 200 N.W. 583. Also that the testimony of a witness is to be judged as a whole even if it is contradictory and conflicting, and that it is for the jury to pass upon under proper instructions from the court. In reality, the question here becomes one of impeachment. It is, therefore, the jury's duty to say whether the testimony has been successfully impeached or not. McVay v. Carpe, 238 Iowa 1131, 1140, 29 N.W.2d 582; Mohn v. Mohn, 181 Iowa 119, 164 N.W. 341; Daggy v. Miller, 180 Iowa 1146, 162 N.W. 854; Holden v. Hanner, 231 Iowa 468, 1 N.W.2d 671; Thompson v. Butler, 223 Iowa 1085, 274 N.W. 110; IX Wigmore on Evidence, Third Ed., Sections 2588-2595.

We passed on such a situation in the case of Hess v. Dicks, 192 Iowa 378, at page 382, 184 N.W. 742, at page 744, where we said:

'Then follow questions on cross-examination as to testimony given by Dicks at the former trial, which we understand appellant to claim was somewhat at variance at some points with his testimony on the last trial. But we have held that the testimony on the last trial was the testimony, and the other simply impeaching. The weight of his testimony, notwithstanding the alleged impeachment, was for the jury. State v. Carpenter, 124 Iowa 5-11, 98 N.W. 775.'

Here, also, the plaintiff's witness attempted to explain the alleged contradictions, and the trial jury evidently accepted it as sufficient. The defendant presents this matter as if these contradictions, if such they were, were substantive proof of the facts in the case. Manifestly this is not true, as they were admitted solely for impeaching purposes, and it was for the jury to say what weight should be given them. It did so. The credibility of the witness Preuss was for the jury to determine, and we note there was no complaint by defendant as to the instructions of the court, and none were offered by him. We assume, then, they were clear and correct, and the jury fairly considered all of this evidence. State v. Banks, 227 Iowa 1208, 290 N.W. 534. In the case of Hartman v. Red Ball Transportation Co., 211 Iowa 64, 233 N.W. 23, 25, we said:

'Some of the witnesses on both sides modified and materially changed the testimony given upon the trial below from that given before the coroner's inquest. This regrettable fact does not present a question of law for the court, but a question of fact for the jury, which must determine the credibility of the witnesses.'

It is true, however, that the court may in its discretion allow a new trial where the prevailing party perjured himself or knowingly used perjured testimony, but this case does not come within that rule. Weinhart v. Smith, 211 Iowa 242, 233 N.W. 26. The case before us is not one involving newly discovered evidence of false testimony. Both the court and the jury considered this testimony, and we find no error and no abuse of discretion in not granting a new trial. Indeed it would have been error to have done so under the circumstances.

II. The other assigned error involving a witness' credibility also relates to the weight to be given the testimony by the jury. Defendant complains of the court's ruling on a question asked in cross-examination of plaintiff's witness John Mahnke, a highway patrolman, alleging undue restriction to defendant's prejudice. Following Mahnke's testimony that he could see vehicles approaching the intersection from both the south and the west from a spot witness Preuss claimed he saw the accident, he was asked the question 'It isn't part of the duties of your job to help attorneys prepare cases for civil trial, is it?' Whereupon plaintiff objected by stating 'If it please the court, we object on the grounds it's very improper * * *', and the court sustained the objection. Defendant cites several cases in support of his contention that the objection was not proper nor specific and should have been overruled. We have carefully examined these authorities and do not find them applicable here, for they relate to objections overruled, not sustained. They enunciate the correct rule that specific objections cannot be urged under the general objection that evidence is 'incompetent, irrelevant and immaterial'. The objection must in some way call the court's attention to the ground of objection. Coad v. Schaap, 144 Iowa 240, 243, 122 N.W. 900. In general the object of judicial investigation is to discover and elicit truth. Whatever is pertinent to the direct examination and furnishes the means of determining the knowledge, the honesty, the intelligence or bias of the witness, should always be laid before the jury. McKivitt v. Cone, 30 Iowa 455.

It is also true that while an objection must be specific when overruled, there is a difference when the objection complained of is sustained. In the latter case, if the question is objectionable on any ground, the sustaining of it is not error, even though not specific. Miller v. Davis, 193 Iowa 611, 187 N.W....