Kaltenheuser v. Sesker
| Decision Date | 07 May 1963 |
| Docket Number | No. 50933,50933 |
| Citation | 255 Iowa 110,121 N.W.2d 672 |
| Parties | Edward R. KALTENHEUSER, Appellee, v. Richard SESKER and Tolfred Sesker, Appellants. |
| Court | Iowa Supreme Court |
F. S. Fillmore, James A. Lorentzen, des Moines, for appellants.
Clark & Clark, Ames, Doran, Doran, Doran, Erbe & Doran, and L. W. Courter, Boone, for appellee.
Plaintiff's petition alleged that on May 13, 1960, he suffered personal injuries and property damage when his automobile collided with a farm tractor owned by the defendant Tolfred Sesker and operated by the other defendant, Richard Sesker; the tractor being stopped at the time partly upon the traveled portion of a public highway. No issue is made in this court upon the questions of negligence and liability. The defendants filed answer and counterclaims. Upon trial to a jury a verdict for the plaintiff was returned, and from the following judgment we have this appeal.
I. The defendants assign three errors, the first two of which are based upon questions involving the measure of damages. We shall consider them in order. The first assignment is quoted: 'The trial court erred in overruling defendants' objection to plaintiff's amendment made at the close of plaintiff's evidence amending plaintiff's petition to allege crop loss in the amount of $5,985.00 and raising the prayer by that amount, in overruling defendants' motion for continuance based on said amendment and in overruling defendants' motion for production of plaintiff's income tax returns prior to trial.'
It will be noted that this assignment divides into two separate propositions. The first concerns the alleged error in permitting the plaintiff to amend to conform to proof at the close of his evidence. We consider it under 1(a) following.
1(a). Plaintiff's petition as it stood before the amendment to conform to proof was permitted asked recovery for damage to his automobile; for personal injuries to his body and face and involving the need for further dental care and necessitating expense for hospitalization and medical and dental care; and for loss of time from his work as a farmer of the value of $15.00 per day for 51 days totalling $765.00. The latter item as pleaded asserts that he was 'permanently disabled and unable to do any work for a period of three weeks during the critical corn planting period'. The total amount of recovery asked for in the original petition was $8,165.00.
At the close of plaintiff's evidence he asked and was granted leave to amend to conform to proof. We set out the amendment herewith. It will be noted the amendment increased the amount asked by $5,985.00. The jury's verdict was for $8,500.00.
The defendants objected to the amendment, and when their objections were denied asked a continuance to enable them to meet what they considered to be a new issue thus brought into the case. This was likewise denied; but the court offered to permit them to recall the plaintiff and his wife, the witnesses whose testimony supported the matter alleged in the amendment, for further cross-examination upon the point so raised. The defendants did not elect to accept this offer. They now contend the court erred in permitting the amendment and in denying them a continuance.
The trial court has a considerable but not unlimited discretion in permitting amendments to conform to proof during trial or at the close of the evidence. This the defendants do not deny; but they think an entirely new issue was introduced by the amendment here and the court's discretion was abused. Both plaintiff and defendants cite many authorities which they contend support their respective positions at this point. We shall not take the time and space required to analyze all of the cases brought to our attention. Mooney v. Nagel, 251 Iowa 1052, 1058, 1059, 103 N.W.2d 76, 80, is a recent case directly in point. There we held it error for the trial court to deny the plaintiff the right to amend by adding two specifications of negligence. We said: We stated and followed the rule in Ver Steegh v. Flaugh, 251 Iowa 1011, 1021, 103 N.W.2d 718, 724, 725, where we further said: 'The matters alleged in the amendment were litigated without objection.' Several authorities are cited.
The trial court in ruling upon the offered amendment here pointed out that the evidence supporting it had been introduced without objection. It gave the defendants the right to recall the witnesses who had testified on the point for further cross-examination; a right they did not choose to exercise. We think this gave them all that they could reasonably ask. Nor are we persuaded the court should have granted a continuance. This, also, was within its discretion. Heiman v. Felder, 178 Iowa 740, 743, 160 N.W. 234, 235.
2(a). Here we consider the second branch of the first assignment of error which is based upon the refusal of the trial court, through a different judge, to sustain defendants' application made some time before the opening of the trial, to require the plaintiff to produce his federal income tax returns for the years 1956 to 1960, inclusive. The application was resisted, and the then presiding judge denied it; but closing with this setence: 'If the trial discloses the materiality of these returns the court will then be in a position to determine the question of production thereof with the proper understanding.'
The application alleged only that the documents asked for were material to a just determination of the cause, for that the plaintiff alleged that he had suffered a loss of income and the documents would bear upon that issue. The court who made the ruling was of the apparent opinion that there was an insufficient showing as to how the income tax returns would be material upon the issue of loss of time by the plaintiff or how they would be relevant to any issue in the case. An application such as this is provided for by R.C.P. 129, 58 I.C.A., and is in the category of motions under R.C.P. 80. It was not supported by affidavit, as Rule 80 requires; nor was any evidence offered as Rule 116 seems to permit. We held in Chandler v. Taylor, 234 Iowa 287, 294-296 inclusive, 12 N.W.2d 590, 594-596, that while the lack of an affidavit in itself was not sufficient to deprive the court of jurisdiction, there should be some showing, if not by affidavit then by evidence under Rule 11l that the documents required were material and relevant to the issues. The case contains a thorough discussion of the question. Whether such a showing should have been made here, however, we do not find it necessary to decide.
Rule 130 is quoted: 'Production of Books or Documents; Order
'The court may order the production or inspection of such books and documents as, in its discretion, it deems material to a just determination of the cause, and on any terms or conditions it deems suitable to protect the documents, their owner, or any other person.' This gives the trial court some discretion as to the production of such documents as it deems material. It is important here to point out that the court's order was not final. It plainly left the way open for the defendants to renew their application at the time of the trial. This they did not choose to do. They say in argument that they should have had the tax returns before the trial so that they could have prepared their case. We are not impressed with this contention. If they had renewed their request at the time of trial, and the court had granted it, it is difficult to believe they could not have shortly inspected these returns, or such of them as the plaintiff was ordered to produce, and gleaned from them whatever information would have been helpful. The tax return of the ordinary Iowa farmer is not such an involved document that weeks of study are required to analyze and understand it. An evening's inspection, probably a study at a noon recess, would surely have been sufficient. The court had discretion to post-pone a final ruling on the application under the circumstances here; and the failure of the defendants to renew it, as the order permitted, brings the strong inference that they were more interested in the issue than in the documents. We find no reversible error here.
II. We set out the defendants' second assigned error: 'The trial court erred in overruling defendants' motion to withdraw from the consideration of the jury plaintiff's claim of permanent disability and plaintiff's claim of damages by reason of having acquired an ulcer.'
It will be observed that again the assignment divides into two parts: the submission to the jury of the claim of...
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