Lorimer v. Hutchinson Ice Cream Co.

• Decision Date: 20 June 1933
• Docket Number: No. 41778.,41778.
• Parties: LORIMER v. HUTCHINSON ICE CREAM CO. et al.
• Court: Iowa Supreme Court

216 Iowa 384

249 N.W. 220

LORIMER

v.HUTCHINSON ICE CREAM CO. et al.

No. 41778.

Supreme Court of Iowa.

June 20, 1933.

Appeal from District Court, Emmet County; James Deland, Judge.

Action by the executrix of the estate of George M. Lorimer, deceased, for damages for causing his death by being struck by an automobile owned by the Hutchinson Company and operated by Sanders, defendants, at or near the corner of two streets in Estherville, Iowa, on November 17, 1930. The jury returned a verdict in favor of plaintiff in the sum of $7,500, and judgment was entered thereon. Defendants appeal.

Affirmed on condition.Comfort & Comfort, of Des Moines, and F. J. Kennedy, of Estherville, for appellants.

D. R. Alexander and J. W. Morse, both of Estherville, for appellee.

KINTZINGER, Justice.

Deceased was struck by an automobile owned by the Hutchinson Ice Cream Company and driven by Leo Sanders, its agent, while in the course of his employment, at or near the corner of Des Moines street and Seventh street in Estherville shortly after 6 p. m. No one saw the automobile strike deceased, but the impact was heard by several witnesses, and after the impact he was seen coming over the left front fender of the car, his body rolling off the left side like turning a somersault. The body lay about 30 or 40 feet south of the intersection of Des Moines and Seventh streets, and was about 7 feet behind the car when it stopped. There is a dispute between the litigants as to whether the deceased was struck while on the intersection or south of it.

Although the lights on defendant's car were lit, the driver failed to see the decedent before he was struck. His lights would disclose an object from 100 to 150 feet ahead of the car.

The business section of Estherville is built around a city park; Des Moines street runs east and west on the north side, and Seventh street runs north and south on the east side of the park, and intersects with Des Moines street at the northeast corner of the park. The deceased left a barber shop shortly after 6 p. m. and was going home to change his clothes as he was going out to supper that night. He was last seen before the accident walking toward the northeast corner of the park on a paved sidewalk between a fountain in the center of the park and the northeast corner. His course was along the diagonal walk through the park to the northeast corner, where Seventh street and Des Moines streets intersect.

After the impact the car was traveling south carrying the body on the car and while it was rolling off. The car ran about 12 feet while the body was seen rolling over it and about 14 feet after it left the car. The driver of the car didn't see the deceased until after the impact, and after deceased was going up over the left front side of the car. The left light of the car was bent back, and there was a dent in the hood, which were not there before. Some testimony shows that no horn or other warning was sounded before the impact. There were no cars parked on the west side of Seventh street at the time, and there was nothing on Seventh street to obstruct the driver's view. After being struck deceased was seen in the street bleeding at the mouth and ears, with a fracture at the base of his skull.

A witness said the crash sounded like a piece of tin being struck by a ball bat; some evidence showed the car was traveling about 15 to 25 miles an hour; the driver said he was going about 15 an hour when he struck deceased. The noise of the impact came from at or very near the crossing, and the body was carried on the car some distance before it fell.

The east side of Seventh street between Des Moines street and the block south was occupied by business property. The building at the southeast corner of Seventh and Des Moines streets was a funeral home, and the body was lying in front of it.

The driver said he struck Lorimer about 20 to 30 feet south of the intersection, but did not see him until after the impact. His lights were sufficient to see Lorimer after he came up over the left side of the car but he did not see him before.

The deceased was 69 years of age, and was earning $75 per month. The Carlisle life tables showed deceased had an expectancy of 8.33 years.

Among the grounds of negligence alleged and submitted to the jury were: (1) That the car was driven at an excessive rate of speed over an intersection. (2) That the driver crossed the intersection without keeping a proper lookout for pedestrians. (3) That he drove the car without giving any warning or signal. (4) That the car was driven at such an excessive rate of speed that it could not be stopped within the assured clear distance ahead.

I. We are first confronted by two motions to strike two amendments to appellants' brief and argument and assignment of errors filed after appellee's brief and argument was filed.

Appellants assign twenty-six errors relied on for reversal in their brief and argument, in chief. Appellee filed her brief and argument in reply thereto. Thereafter appellants filed an “Amendment and Supplement to Appellant's Brief and Argument and Assignment of Errors,” and later filed another amendment designated as “Amendment to Appellant's Brief and Argument.”

[1] Rule 30, paragraph 5, requires that appellant's brief and argument shall contain a statement showing “the errors relied upon for reversal.” A note under this rule requires said errors to be “set forth in clear, concise and definite language sufficiently full and specific,-to apprise the court of the ruling complained of, and the particular or particulars in which and for what reason it is claimed to be erroneous.” The additional briefs and amendments were apparently filed to make more specific the errors relied upon for reversal and meet or obviate the points raised in appellee's brief and argument. This cannot be done after appellee has filed his brief and argument. Bodholdt v. Townsend, 208 Iowa, 1350, 227 N. W. 404;Fisher v. McCarty, 197 Iowa, 369, 195 N. W. 608;Floyd & Newland v. Serenado Mfg. Co., 196 Iowa, 6, 193 N. W. 581;Dodge v. Grain Shippers' Mutual Fire Insurance Ass'n, 176 Iowa, 316, 157 N. W. 955;State v. Thomas, 173 Iowa, 408, 155 N. W. 859;Blomgren v. City of Ottumwa, 209 Iowa, 9, 227 N. W. 823, 824.

In the latter case we said: “The appellant, in its reply brief, attempts to make specific the grounds relied upon for reversal. This statement in its reply brief is of no avail to the appellant. The errors relied upon for reversal set out in appellant's original brief measure its full right of review.” Another reason for holding that the errors assigned cannot be amended or added to in a reply brief is contained in the seventh paragraph of rule 30, which provides that “ any error relied upon for reversal, not argued in the ‘argument in chief,’ shall be deemed to have been waived.” Duncan v. Rhomberg, 212 Iowa, 389, 236 N. W. 638;Mennenga v. Mennen, 182 Iowa, 1147-1156, 166 N. W. 486;Powers v. Iowa Glue Co., 183 Iowa, 1082-1088, 168 N. W. 326;Miller v. Swartzlender & Holman, 192 Iowa, 153, 182 N. W. 651.

[2] It is apparent from the foregoing cases and the latter provision in paragraph 7 that it was the purpose of rule 30 to require all assignments of errors to be set out in the “Argument in Chief,” and that all errors not argued therein shall be deemed to have been waived. In this case a large number of the errors relied on in appellants' “Argument in Chief” were not sufficiently specific to comply with rule 30 and the additional assignments set out in two later amendments were not argued at all in the ““Argument in Chief,” and therefore, under paragraph 7 of the rule 30, they are also deemed to have been waived. The appellee's motions to strike said Amendments was submitted with the case and are hereby sustained.

[3] II. Without setting out in detail the great number of the errors relied upon for reversal in appellants' original brief and argument, we find that errors Nos. 3, 5, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 of appellants' brief and argument do not comply with rule 30 because they are either omnibus assignments, or show no specific grounds for reversal. Sweeping omnibus errors in blanket form, and errors which do not set out specific grounds for reversal, are not sufficient to present anything for our consideration. Reynolds & Heitsman v. Henry, 193 Iowa, 164, 185 N. W. 67;Fisher v. McCarty, 197 Iowa, 369, 195 N. W. 608;Harrington v. Southern Surety Co., 206 Iowa, 925, 221 N. W. 577;Reynolds v. Chehak, 199 Iowa, 561, 202 N. W. 268;In re Estate of Pauly, 174 Iowa, 122, 156 N. W. 355;Blomgren v. City of Ottumwa, 209 Iowa, 9, 227 N. W. 823, and other cases therein cited; Hedrick Nat. Bank v. Hawthorne, 209 Iowa, 1013, 227 N. W. 403. This question was fully considered in the case of Hedrick Nat. Bank v. Hawthorne, 209 Iowa, 1013, 227 N. W. 403, in which the authorities were exhaustively reviewed. It will answer no useful purpose to review them again. The assignments hereinabove referred to are too sweeping, vague, and general to present any question for our consideration.

There are several other errors assigned, but without intending to set them out in detail as errors assigned we conclude they raise the following questions:

1. Whether or not the court erred in overruling defendants' motion to set aside the verdict and grant a new trial because it erred in failing to sustain defendants' motion, made at the conclusion of plaintiff's evidence, to strike and withdraw from the jury certain allegations of negligence contained in count II of the amendment to plaintiff's petition.

2. Whether or not there was sufficient evidence to warrant the jury in finding the defendant guilty of any of the allegations of negligence submitted to the jury.

3. Whether or not there was sufficient evidence to warrant the jury in finding that plaintiff was free from contributory negligence.

4. Whether or not the death of decedent was the result of...