Law v. Hemmingsen, 49409

Decision Date09 April 1958
Docket NumberNo. 49409,49409
Citation249 Iowa 820,89 N.W.2d 386
PartiesDiane LAW, a Minor, by her father and next friend, Richard G. Law, Appellant, v. Hans Franklin HEMMINGSEN and Francis Putnam, d/b/a Putnam Servi-Systam, Appellees.
CourtIowa Supreme Court

Robert M. Dippel and Noran L. Davis, Council Bluffs, and Charles E. Kirchner, Omaha, Neb., for appellant.

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellees.

GARFIELD, Justice.

Plaintiff, a little girl of four, was seriously and permanently injured in a collision between a Chevrolet automobile driven by her father in which she and her mother were riding and a gasoline tank truck driven by defendant Hemmingsen, owned by defendant Putnam. The collision occurred February 29, 1952, just before dawn, on U. S. Highway 75 about 1 1/2 miles north of Council Bluffs. The Law car was proceeding south, the truck north. The collision was near a slight curve to the east--left for the Law car, right for the truck--in the 18-foot paved roadway. The three occupants of the Chevrolet were thrown from the car and all were unconscious for a time. Plaintiff was the most seriously injured.

The first trial resulted in judgment for defendants on directed verdict which we reversed. Law v. Hemmingsen, 247 Iowa 855, 76 N.W.2d 783, where the general fact situation is stated. The second trial ended in a jury verdict and judgment for defendants from which plaintiff has appealed.

Principal controversy in the evidence has to do with which driver in meeting the other failed to give half the traveled way by turning to the right in violation of section 321.298, Code 1954, I.C.A. Evidence for plaintiff is that the truck was partly in the Law, west, lane of traffic when the vehicles collided. Defendants' testimony was that the Chevrolet was then partly in their, east, lane. Speed of the two vehicles and other matters, as in most cases of this kind, are also in dispute. There is substantial evidence both drivers were negligent.

I. Plaintiff first complains of the court's refusal to instruct the jury that if the collision was caused by the concurring or combined negligence of defendant Hemmingsen and plaintiff's father she would be entitled to recover her damages. Plaintiff requested an instruction 3 to this effect which was refused and no such instruction was given. We are clear this was error. Defendants' argument that the instructions sufficiently cover the point cannot be accepted.

This argument is based on a statement in instruction 15, a stock definition of proximate cause, that 'It does not mean the sole and only cause of the injury complained of' which follows 'Proximate cause means the direct, efficient, producing cause.' Also upon instruction 16 which says the negligence of the father Richard Law would not be imputed to plaintiff but if it was the sole and only cause of the collision plaintiff could not recover.

Instruction 16 is one of ten instructions given by court that were requested by defendants. Defendants' sixth request embodies the same thought expressed in plaintiff's third requested instruction. But this portion of defendants' sixth request is not found in the court's instructions although some other parts of it were given. Instruction 16 is not fairly balanced and the omission is not elsewhere supplied. The jury should have been clearly told that if the collision was proximately caused partly by Hemmingsen's negligence as charged and partly by Mr. Law's negligence plaintiff could recover her damages resulting therefrom. This might well have been added to instruction 16.

The question under discussion is at the very heart of the case. The jury should not have been left to guess as to the rights and obligations of the parties if the negligence of defendant-driver and Mr. Law combined to cause the collision. It could not reasonably be expected to arrive at the applicable rule of law merely from the abstract stock statement in instruction 15 that proximate cause does not mean the sole and only cause.

There is no merit to defendants' suggestion that plaintiff's third request improperly assumes defendant-driver was negligent. It is true the words 'proximately caused by the concurring negligence' would be somewhat preferable to 'the result of the concurring negligence' as used in the request. But the request was clearly sufficient to call to the court's attention the importance of such an instruction. See Dice v. Johnson, 187 Iowa 1134, 1137, 175 N.W. 38; State v. Cessna, 170 Iowa 726, 729-731, 153 N.W. 194, Ann.Cas.1917D, 289; Wise v. Outtrim, 139 Iowa 192, 204-205, 117 N.W. 264, 130 Am.St.Rep. 301; Hanson v. Kline, 136 Iowa 101, 112, 113 N.W. 504; Kinyon v. Chicago & N. W. R. Co., 118 Iowa 349, 361, 92 N.W. 40, 44, 96 Am.St.Rep. 382.

The Kinyon case states: 'As a rule, instructions offered by counsel are not so framed that the court is justified in giving them literally as asked, but, if the main though sought to be expressed contains a pertinent legal principle which is not already fully covered by other instructions given, the court should embody it in proper words in its own charge.'

It is the court's duty to instruct with reasonable fullness on the issues and a mere abstract definition of a term, having no application to the particular controversy, is insufficient. The instructions afford the only guide the jury has for correct application of the law to the facts. Gardner v. Johnson, 231 Iowa 1233, 1235-1236, 3 N.W.2d 606, 607-608, and citations; Sanford v. Nesbit, 234 Iowa 14, 18-19, 11 N.W.2d 695, 698.

That each person whose negligence concurs or combines to cause injury to another is liable therefor is so well settled citation of authority is hardly necessary. Nor do defendants dispute the proposition. See, however, Newman v. Hotz, 226 Iowa 834, 839, 285 N.W. 287, and citations; Johnson v. McVicker, 216 Iowa 654, 657, 247 N.W. 488, and citations; McDonald v. Robinson, 207 Iowa 1293, 1295, 224 N.W. 820, 62 A.L.R. 1419, 1422; Judd v. Rudolph, 207 Iowa 113, 119, 222 N.W. 416, 62 A.L.R. 1174, 1180; Restatement Torts, section 439, and Comment b; 60 C.J.S. Motor Vehicles § 254 ('* * * and it is immaterial which of the negligent persons was more negligent or whose negligence contributed more to the accident.'). 5A Am.Jur., Automobiles and Highway Traffic, section 238 ('* * * that the negligence of one may have been greater than the negligence of the other does not bar recovery from the latter.').

Perhaps we should add that since plaintiff was only four when injured there is no issue of her freedom from contributory negligence.

II. Defendants apparently question the sufficiency of plaintiff's objections to the court's refusal of her third requested instruction as required by rule 196, Rules of Civil Procedure, 58 I.C.A., Tucker v. Tolerton & Warfield Co., Iowa, 86 N.W.2d 822, 827, and cases there cited. There is no doubt the request was made and refused.

During the trial the hearing on requested instructions was held in the judge's chambers and the official reporter made a stenotype record thereof. When the typewritten transcript of the trial record was prepared, after the appeal was taken, it was discovered the record made in chambers had been lost or misplaced. Opposing counsel stipulated in writing the hearing just referred to was held, a record of it was made by the reporter and 'said record containing objections and exceptions by counsel has been lost or mislaid.' Thereafter the reporter made affidavit the above record was made but he was unable to find it after diligent search.

The trial judge also made affidavit that the stenotype record of rulings on objections to instructions given and refusal of those requested by both sides, taken in chambers, had been lost or mislaid and was not available. Also that counsel for both sides 'made appropriate objections * * * to all rulings on instructions given which were adverse to their respective clients and are material to the issues on appeal.'

The record on appeal contains all the above matters together with an affidavit of plaintiff's counsel that at the hearing in chambers he or they objected to the court's failure to give the instructions requested and any adequate instruction on the law as to the joint and several liability of defendant-driver and particularly on concurrent negligence. Opposing counsel later agreed 'the foregoing shall constitute the record on appeal' and the trial judge certified it was the agreed record.

Rule 341(a), Rules of Civil Procedure, states in part, 'If anything material to either party is omitted from the record on appeal by error or accident, * * * the parties by stipulation, on the trial court, either before or after the record is transmitted to the supreme court * * * may direct the correction thereof * * *.' Rule 341 is broader than section 12857, Code 1939 (4127, Code 1897) which it supersedes. The statute made no provision for correction of the record by stipulation and provided for notice to the adverse party, a requirement not found in rule 341.

Kohl v. Arp, 236 Iowa 31, 35-37, 17 N.W.2d 824, 827, 169 A.L.R. 1067, 1071-1072, is the principal decision that has arisen under rule 341. There the trial judge made an ex parte order for leave to amend the typewritten record by adding the instructions given and requested. Appellee attacked the order in the district court and moved in this court to strike what was added to the record. While we pointed out the amendment of the record should not have been ordered ex parte we refused to say there was not substantial compliance with rule 341(a). 'Nor can it be doubted the district court had, under the rule quoted, full authority to correct the Record.' We denied the motion to strike from the record the instructions given and asked.

Upon the point now considered the present case seems as strong for plaintiff as Kohl v. Arp was for those appellants. The judge's affidavit is as effective as the ex parte order...

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