Keller v. Dodds
| Decision Date | 08 February 1938 |
| Docket Number | 43961. |
| Citation | 277 N.W. 467,224 Iowa 935 |
| Parties | KELLER v. DODDS. |
| Court | Iowa Supreme Court |
Appeal from District Court, Story County; Sherwood A. Clock, Judge.
An action for damages by reason of a collision between an automobile being driven by plaintiff, and a truck being driven by defendant. Verdict for plaintiff; defendant appeals.
Reversed and remanded.
Hallagan, Fountain, Stewart & Cless, of Des Moines, and C. A Smedal, of Ames, for appellant.
Dyer Jordan & Dyer, of Boone, and Nichol & Nichol, of Ames, for appellee.
On the 20th day of September, 1935, between 9 and 9:30 p. m. appellee, accompanied by three persons, was driving a Ford V-8 coupé owned by himself, north on primary highway No. 60 in Boone county. This highway was macadamized, or surfaced with a combination of crushed rock and oil, and at the place of the accident, hereinafter referred to, the traveled portion was approximately 24 feet wide. The appellant was engaged in the general trucking business, had been so engaged for a period of about five years, and held a permit from the Iowa Railroad Commission to operate a truck. At the time of the accident appellant was driving his truck south upon said highway No. 60, accompanied by another person. At a point on said highway, about 10 rods south of the boundary line between Boone and Hamilton counties, there is a slight hill, which lowers going toward the north, and at the time in question the automobile of appellee had gone over the top of this hill and was proceeding to the north, and when about a third of the way down said hill there was a collision between the automobile of appellee and the truck of appellant; said collision consisting of a side swiping of said automobile and truck, or of the left side of said automobile and the left side of said truck colliding. This collision damaged appellee's automobile, and likewise injured his left elbow, in that the bones in said elbow were comminuted, or all broken in small pieces; as a result of which appellee is left with practically no elbow joint, and this condition apparently will be permanent.
It is the claim of appellee that at the time of and immediately preceding the collision he had been operating his car at a speed of approximately 40 miles an hour, and that appellant was operating his truck at a speed of about 40 miles an hour. It is also his claim that for some time prior to the accident he had been traveling on the east or his right-hand side of the highway, and upon observing the lights on appellant's truck approaching him from the north, he pulled over to the edge of the road on the east side thereof, and that the collision between the automobile and the truck occurred 3 or 4 feet east of the center of said highway. It is the contention of appellant that immediately prior and up to the time of the accident he was traveling on the west, or his right-hand side of the traveled portion of said highway, and that upon observing the lights of appellee's car approaching him from the south, he continued on the west side of the highway, or, in fact, pulled his truck almost to the extreme west side of the highway, and that at the time of the collision the right wheels of his truck were about 12 inches from the west edge of the traveled surface. It is likewise the contention of appellant that at said time he was not driving his truck at a speed in excess of 15 miles an hour. It will be observed from the foregoing that it was the firm contention of both parties that each of said parties was well to the right of the center of the traveled portion of said highway, and that the opposing party violated the rule of law requiring the parties when meeting upon a highway to turn to the right and give one-half of the traveled way.
Appellant, in his first assignment of error, claims that the court erred in overruling his motion for new trial, on account of misconduct of the jury, in that arriving at their verdict the jury considered matters, facts, and issues not in evidence, and based their verdict, in part at least, on assumptions, speculations, and facts not supported in the testimony, nor property in issue in the case.
As regards this item of error, one of the attorneys for defendant, in his motion for new trial, attached an affidavit charging the jury was guilty of misconduct in considering the question of whether or not defendant carried public liability insurance; and upon hearing of said motion eleven of the twelve jurors were called as witnesses and gave testimony as to what occurred in the jury room in this regard. One of the jurors, W. J. Hall, Jr., in said hearing testified that it was talked over among the jurors as to whether or not defendant carried liability insurance, and he stated that it was asserted defendant surely had insurance, or that it was reasonably certain he had insurance, inasmuch as he was a common carrier. He further testified that he knew it was necessary for the defendant to have such insurance, and that he told the other members of the jury that the defendant must have carried insurance. He also testified that he had not felt the defendant was completely to blame for the accident; that he thought the evidence did not show defendant was liable, and that this talk concerning insurance influenced him in agreeing to a verdict in favor of plaintiff, and that his consent to the verdict was based on the fact that defendant might have insurance, and that some insurance company would pay the judgment. The juror Harry B. Sexton testified that the juror Hall had made the remarks stated above; that said remarks were made during the deliberations of the jury and before it had agreed on a verdict for plaintiff in any amount, and that it was urged by members of the jury that even if the jury should find for the plaintiff that defendant would not have to pay the judgment; and that following that line of argument, he finally surrendered his honest conviction and agreed upon a compromise, believing the defendant would not have to pay the judgment. However, on cross-examination this juror testified that his verdict was based on the thought that it would be better to compromise than to leave the case undecided, and that the talk on insurance had no effect on his verdict. Again on redirect examination this juror stated that the talk concerning insurance did have some effect upon his consent to a verdict for the plaintiff, and again on recross-examination he stated that the result would have been the same if there had been no talk concerning insurance. The remaining nine jurors who were examined at this hearing all testified that there was some talk relative to defendant carrying insurance, or that the carrying of insurance by all truckers was compulsory under the state law, but all remaining nine jurors testified this talk concerning insurance had no effect whatever upon them in arriving at the verdict.
This court has at different times passed upon the question of the propriety of permitting counsel to introduce evidence to the effect that defendant was carrying liability insurance, but only one case has been brought to our attention, wherein this court has had before it the question of misconduct of the jury based upon conversation of the jury during their deliberations relative to defendant carrying insurance. This is the case of Bauer v. Reavell, 219 Iowa 1212, 260 N.W. 39, in which case three jurors made affidavits to the effect that the matter of insurance was brought up and discussed in the jury room, whereas eight or nine others of the jurors made affidavits denying that any such discussion took place, and Mr. Justice Hamilton, in writing the opinion therein, stated that in view of the claimed discussion in reference to insurance being controverted by at least eight of the jurors, and in the absence of any showing that the misconduct, if any, was such as to materially affect the rights of complaining party, that the defendant would not be entitled to a new trial on that ground.
However, we have a different situation in the instant case, as the testimony of the entire eleven jurors who were examined agreed that the subject of defendant having liability insurance on account of being a trucker was discussed. Likewise, two of the jurors stated that such discussion influenced them in arriving at their verdict, but in view of the fact that the juror Sexton testified both ways, depending upon whatever side was examining him, leaves the question as to whether or not this talk influenced him extremely doubtful. However, in this connection, we are of the opinion that the portion of the testimony of the juror Hall, to the effect that this talk in the jury room influenced him in arriving at his verdict, should be entirely disregarded, and, also, that any testimony of the juror Sexton to the effect that the talk concerning insurance influenced him in arriving at his verdict should be disregarded. It has long been established that jurors should not be allowed to impeach their own verdict, and it seems to us that to permit a juror to testify by affidavit or otherwise, to the effect that a certain conversation influenced him and caused him to reach a certain verdict, is violative of the rule that jurors should not be allowed to impeach their verdict, and that statements that such talk did in fact influence them inheres in the verdict itself. It is, of course, permissible to show the facts as to what actually transpired in the jury room, in order that the court may ascertain whether or not the jury was guilty of misconduct, and whether or not such misconduct was prejudicial, but to permit a juror not only to testify as to the facts of what actually transpired, but also to permit said juror to testify that such facts influenced him in...
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