Kalianov v. Darland, 2-57881

• Decision Date: 20 April 1977
• Docket Number: No. 2-57881,2-57881
• Citation: 252 N.W.2d 732
• Parties: Michael K. KALIANOV and Fay Kalianov, Appellees, v. Floyd W. DARLAND and Pioneer Advertising Company, Inc., a/k/a Pioneer Advertising Co., Inc., Appellants.
• Court: Iowa Supreme Court

Page 732

252 N.W.2d 732

Michael K. KALIANOV and Fay Kalianov, Appellees, v. Floyd W. DARLAND and Pioneer Advertising Company, Inc., a/k/a Pioneer Advertising Co., Inc., Appellants.

No. 2-57881.

Supreme Court of Iowa.

April 20, 1977.

George Lindeman, of Lindeman & Yagla, Waterloo, for appellants.

Edward J. Gallagher, Jr. and Edward J. Gallagher, III, of Gallagher, Martin, Burk, Keith & Langlas, Waterloo, for appellees.

Heard by MOORE, C. J., and MASON, UHLENHOPP, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

The trial court entered judgment against defendants on jury verdicts awarding $90,000 to plaintiff Michael Kalianov and $5250 to his wife Fay for injuries sustained by Michael when his automobile collided with one driven by defendant Floyd M. Darland in Waterloo on October 29, 1971. In this appeal defendants challenge evidentiary rulings relating to the issue of Michael's damages and procedural rulings concerning discharge of a juror and recall of an alternate. They also contend the trial court erred in overruling their motion for new trial based on newly discovered evidence and the size of Michael's verdict. We affirm the trial court.

I. Rulings on evidence. Prior to his injury Michael was a jazz pianist. He had performed professionally, arranged music and operated a night club in Waterloo. His left ulnar nerve was injured in the accident. He underwent nerve transplant surgery. Several years of therapy and additional treatment ensued. In the October 1974 trial, he claimed he was no longer able to work as a pianist because of permanent disability of his left hand and arm.

Defendants objected to some of the evidence offered by Michael to prove the extent of impairment of his earning capacity. They contend the trial court erred in overruling relevancy, hearsay, and opinion and conclusion objections.

Defendants assert their relevancy objections to six questions should have been sustained. Three of these questions were asked to establish the success and popularity of Frank D'Rone, a singer with whom Michael had performed. The accident terminated plans they had to perform together again. Two of the questions were calculated to elicit answers showing the income of trios of the kind to which he previously belonged. And through one question Michael attempted to demonstrate that he and D'Rone had entertained at places where artists of national renown performed.

The basic test of relevancy is whether the challenged evidence makes the desired inference more probable than it would be without the evidence. This determination is a matter for exercise of trial court discretion. State v. Engeman, 217 N.W.2d 638, 639 (Iowa 1974).

The record shows Michael and D'Rone had rehearsed before the accident for a concert tour of college campuses. The trial court could conclude evidence of Michael's past success with D'Rone and the later success of D'Rone which Michael's injury prevented him from sharing had some probative force in establishing the diminution in his earning capacity by reason of the injury. Evidence of earnings of trios of the kind to which Michael previously belonged could be found to have similar probative value. It was not an abuse of discretion for the trial court to overrule defendant's relevancy objections to the six questions.

Defendants allege the court erred in overruling hearsay objections to three questions. Michael was asked whether he ever had an opportunity to play with the Louis Armstrong band. He was also asked whether he knew where Frank D'Rone was scheduled to perform in 1971 and 1972 and, after he answered affirmatively, the names of some of these places.

An assertive statement made by a person while testifying at trial is not hearsay. By definition, hearsay is a statement other than one made by the declarant while testifying at the trial which is offered in evidence to prove the truth of the matter asserted. See State v. Miller, 204 N.W.2d 834, 840 (Iowa 1973). The first question called for an assertive statement by Michael purportedly based on his personal knowledge. It contemplated an answer which would rest on his credibility, not that of an out-of-court declarant. It did not call for hearsay. See II Wigmore on Evidence § 657 (Third Ed. 1940); V Wigmore on Evidence § 1361 (Chadburn Rev. 1974); McCormick on Evidence §§ 10, 246 and 247 (Second Ed. 1972). The second question was preliminary to the third. Assuming, without deciding, Michael's answer to the third question would necessarily be derived from information he obtained from D'Rone, defendants were not prejudiced. D'Rone testified and gave the same evidence. The purposes of the hearsay rule were satisfied.

Three other questions were objected to on the ground they called for opinions and conclusions. These objections were inadequate to preserve error. An objection to a question on the ground it calls for an opinion and conclusion is worthless standing alone because it lacks requisite specificity. Bengford v. Carlem Corporation, 156 N.W.2d 855, 865 (Iowa 1968).

Defendants also complain about the court's ruling on their offer of a certified copy of bankruptcy papers filed by Michael in 1969. The court held the papers could be marked as an exhibit and used in cross-examination of Michael. However, the court sustained an objection by plaintiffs to inquiry about individual debts listed on the exhibit, except a debt to Michael's sister, on the ground that the possible prejudicial effect of identifying Michael's individual debts, except the one to his sister, outweighed the probative value of such evidence. No other limitation was placed on defendants' use of the exhibit, and defendants did not establish the relevancy of identifying additional individual debts. The court sustained Michael's objection to the offer of the exhibit on the ground the bankruptcy schedules listed the individual debts about which inquiry had been proscribed.

A trial court has discretion to exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. State v. Harmon, 238 N.W.2d 139, 144 (Iowa 1976). Defendants have not demonstrated an abuse of discretion here.

We find no merit in any of defendants' challenges to trial court rulings on evidence.

II. Procedural rulings. Defendants contend the trial court erred in substituting an alternate juror for a regular juror after the jury had retired to deliberate. They assert the court should have followed § 624.14, The Code, when it learned the regular juror, Dean Winter, had made out-of-court observations of Michael which would be relevant evidence on the issue of his claimed disability, should not have excused juror Winter, and should not have recalled the alternate juror to take Winter's place.

The problem occurred about 15 minutes after the jury was instructed and retired to deliberate. The alternate juror had been excused with an admonition not to discuss the case until after the jury returned its verdict. The bailiff informed the judge that Winter had expressed concern to him about out-of-court observations he had made during a trial recess. The judge called Winter into chambers and questioned him on the record in the presence of counsel. Winter testified he observed Michael in the courtroom "holding his arm quite severely" but saw him on the street during a trial recess and "thought he was handling his cigarette pretty well and smoking, and really flipping it around." He said he concluded Michael "was doing a little fake" in the courtroom but assured the judge he would not let it influence his verdict.

Plaintiffs' counsel moved that Winter be excused. The judge sustained the motion over defendants' objection. Defense counsel refused to stipulate to allow the remaining 11 jurors to decide the case. The judge then directed that the alternate juror be recalled to replace Winter. In excusing Winter and recalling the alternate, the judge said the other 11 jurors were just waiting for further instructions and had not engaged in any substantial discussion.

The first issue is whether the trial court erred in failing to follow § 624.14, The Code, when juror Winter's information was brought to its attention. That provision makes § 780.17, The Code, applicable in civil cases. Cf. Acts 66 GA Ch. 1245, ch. 4, § 499. Section 780.17 provides:

If a juror have personal knowledge respecting a fact in controversy in a cause, he must declare the same in open court during the trial, and if, during the retirement of the jury, a juror declares any fact which could be evidence in the cause, as of his own knowledge, the jury must return into court, and the juror must be sworn as a witness and examined in the presence of the parties, if his evidence be admissible; and in support of a motion to set aside a verdict, proof of such declaration may be made by any juror.

Plaintiffs allege defendants failed to preserve error on this issue because they raised the applicability of the statute for the first time in their motion for new trial.

Although defendants argue otherwise we do not believe the trial court should be put in error for not following a statute whose procedures were not invoked until too late to use them....