Michael v. Harrison County Rural Elec. Co-op., 2-64070

• Decision Date: 21 May 1980
• Docket Number: No. 2-64070,2-64070
• Citation: 292 N.W.2d 417
• Parties: Carl MICHAEL and Marilyn I. Michael, Appellants, v. HARRISON COUNTY RURAL ELECTRIC COOPERATIVE, Appellee. HARRISON COUNTY RURAL ELECTRIC COOPERATIVE, Third-Party Plaintiff, v. HARRISON COUNTY and Gerald Withem, Third-Party Defendants.
• Court: Iowa Supreme Court

Page 417

292 N.W.2d 417

Carl MICHAEL and Marilyn I. Michael, Appellants, v. HARRISON COUNTY RURAL ELECTRIC COOPERATIVE, Appellee.

HARRISON COUNTY RURAL ELECTRIC COOPERATIVE, Third-Party Plaintiff, v. HARRISON COUNTY and Gerald Withem, Third-Party Defendants.

No. 2-64070.

Supreme Court of Iowa.

May 21, 1980.

Martin E. Spellman of Spellman, Spellman, Spellman & Spellman, Perry, and James R. Welsh of Welsh, Sibbernsen & Bowen, Omaha, Neb., for appellants.

James A. Giles, Robert M. Holliday and John T. Ward of Wasker, Sullivan & Ward, Des Moines, for appellee.

Considered by REYNOLDSON, C. J., and REES, UHLENHOPP, ALLBEE, and McGIVERIN, JJ.

ALLBEE, Justice.

Plaintiffs appeal from the judgment entered on an adverse jury verdict in their tort action arising out of injuries suffered by plaintiff Carl Michael when a dragline came in contact with defendant's high voltage, overhead electrical transmission line. Plaintiff Marilyn I. Michael's claim is based on loss of consortium.

The accident occurred on February 27, 1976, while Carl was working as a member of a Harrison County Road Department crew engaged in the repair of a bridge located northwest of Woodbine. A dragline was being used to lift and set steel beams in place on the bridge. Carl, working from a ground-level position, was guiding a beam into place when the dragline came in contact with the overhead transmission line. As a result, Carl was severely and permanently injured by electrical current.

I. Plaintiffs first contend that trial court abused its discretion in denying their motion for a continuance of the trial assigned to begin on July 24, 1979. That motion asked that the trial be continued, as it had been once before in April 1979, because of recent open heart surgery of a witness, Leland Ray Isaacs, and his resulting inability to withstand the stress of giving evidence at trial. Plaintiffs argued, inter alia, that the evidence sought from Isaacs, a lineman-employee of defendant, was critical to their case, that Isaacs's discovery deposition testimony was not sufficient for the effective presentation of their evidence, that plaintiffs needed to confront Isaacs with documents and evidence that had come to light since the taking of his deposition, and that Isaacs was an unwilling and hostile witness whose demeanor in response to interrogation should be observed by the jury in order to assess his credibility.

For us to find an abuse of discretion in a trial court ruling, it must be shown by the complaining party that the trial court's action was unreasonable under the attendant circumstances. State v. Cott, 283 N.W.2d 324, 329 (Iowa 1979). We note, too, that discretionary rulings, such as the one here, are presumptively correct and complainant has a heavy burden to overcome the presumption of regularity. See State v. Gartin, 271 N.W.2d 902, 910-11 (Iowa 1978) (quoting Donahoo, The Scope of Judicial Discretion in the Iowa Criminal Trial Practice, 58 Iowa L.Rev. 1023, 1024 (1973)). Ordinarily, an abuse is found to exist only where there is no support in the record for the trial judge's determination. Rath v. Sholty, 199 N.W.2d 333, 336 (Iowa 1972). Finally, we have said concerning rulings on motions for continuance that "trial courts are accorded broad discretion and absent clearly shown abuse thereof we will not interfere." Madison Silos, Division of Martin Marietta Corp. v. Wassom, 215 N.W.2d 494, 498 (Iowa 1974); see Iowa R.Civ.P. 183(a).

In light of the persuasive reasons for a continuance advanced by plaintiffs, the question of whether a continuance should have been granted is close. Trial court would not have abused its discretion if it had allowed a continuance. On the other hand, under principles enunciated in our prior decisions, we are unable to say that trial court's denial of plaintiffs' motion for a continuance was unreasonable under the attendant circumstances. We do find support in the record for its ruling.

Trial court, in ruling on the motion, considered both the availability of Isaacs's testimony by virtue of the earlier taking of his discovery deposition and the opportunity of plaintiffs' attorneys to cross-examine Isaacs at that time, which they did at length. Trial court also noted that this case was then pending under the constraints of Iowa R.Civ.P. 215.1. In addition, we observe that there was no definitive showing of when in the future Isaacs would likely have been physically able to testify. Moreover, the value of Isaacs's physical presence for observation by the jury of his demeanor when testifying and plaintiffs' need for further cross-examination, are both, under this record, rather speculative. Consequently, there has not been a clear showing of abuse...