Miller v. Bonar

• Decision Date: 17 August 1983
• Docket Number: No. 69342,69342
• Parties: Keith V. MILLER, Appellee, v. David Arnold BONAR and Dilts Trucking, Incorporated, et al., Appellants.
• Court: Iowa Supreme Court

Page 523

337 N.W.2d 523

Keith V. MILLER, Appellee, v. David Arnold BONAR and Dilts Trucking, Incorporated, et al., Appellants.

No. 69342.

Supreme Court of Iowa.

Aug. 17, 1983.

Philip Willson of Smith, Peterson, Beckman & Willson, Council Bluffs, for appellants.

C.W. Carlberg of Don Carlos, Carlberg & Jungmann, Greenfield, for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, McGIVERIN, LARSON and WOLLE, JJ.

McGIVERIN, Justice.

Defendants appeal from numerous allegedly erroneous rulings and jury instructions in connection with an action for damages resulting from an accident involving two trucks. Specifically, they contend that the trial court erred as follows:

(1) In granting continuances under Iowa R.Civ.P. 215.1;

(2) in admitting evidence of damages not disclosed by plaintiff's answers to interrogatories;

(3) in overruling defendants' hearsay objections to certain exhibits;

(4) in permitting hearsay testimony;

(5) in overruling objections to expert testimony;

(6) in allowing opinions as to violations of domestic law;

(7) in overruling objections to jury instructions as to lack of control of defendants' vehicle;

(8) in instructing as to plaintiff's age at time of accident in the mortality table instruction; and

(9) in awarding interest on the judgment when none was requested by plaintiff.

We conclude that defendants' contentions are without merit and affirm the judgment for plaintiff.

This case arose out of a collision between two trucks on Highway 25 approximately eight miles north of Greenfield. The straight truck driven by plaintiff Keith Miller was hit from behind by a semi owned by defendant Dilts Trucking, Incorporated and driven with its consent by defendant David Arnold Bonar.

Viewing the evidence in the light most favorable to the plaintiff, the jury could have found that Bonar initially was attempting to pass Miller on the left in a marked no-passing zone on the highway. When Miller slowed and signaled a left turn, Bonar attempted to recross the center double yellow lines and go around the right-hand side of Miller's truck. Unable to complete this maneuver, Bonar hit the right rear corner of Miller's truck and pushed the box into the cab.

As a result of injuries received in this collision, Miller suffers from headaches and dizzy spells. He is unable to perform all of the farmwork which he did prior to the accident and has had to rely on his father and brother, with whom he is in partnership, for a portion of his farm income. Miller has also had to increase his reliance on veterinarians in the care of his livestock, and he has hired carpenters for his fence and farm repairs.

The jury returned a verdict for plaintiff in the amount of $150,000.

I. Continuances under rule 215.1. The path this case took to reach the jury was slow and tortuous. The accident occurred on November 15, 1977, and plaintiff filed his six-division petition seeking damages on November 14, 1979.

Plaintiff, however, moved towards trial at tortoise pace. Twice defendants were forced to seek motions to compel discovery and from June 1980 through July 1981, plaintiff neglected to respond to defendants' overtures to resolve the issues in this case.

On August 5, 1981, the clerk of district court gave counsel notice that pursuant to the provisions of Iowa R.Civ.P. 215.1 ¹ the case would be subject to dismissal unless tried prior to January 1, 1982. On December 21, 1981, plaintiff filed an application to continue the case beyond January 1, 1982, stating that "this case is complex and additional pleadings and discovery procedures are contemplated...." Defendants filed a resistance. On December 29 the district court sustained the application providing "that such continuance shall be to July 1, 1982; said cause to be tried on or before this date or be dismissed."

The record shows no further progress toward trial until June 1, 1982, when plaintiff filed his trial certificate. At the same time he also filed a motion for continuance to avoid an automatic July 1 dismissal. In the motion plaintiff stated he was experiencing health problems which delayed settlement negotiations and readiness for trial until that time. Plaintiff asked that the case be set for trial as promptly as the court calendar would allow. On June 8, the district court granted a second continuance and ordered the court administrator to immediately assign the case for trial as soon as there was an opening in the assignment. Defendants filed a resistance on June 10. They then filed a motion for rehearing which brought the resistance to the attention of the court because the court had ruled before the resistance was filed. On June 29 the court overruled the motion for rehearing. Trial began on August 23.

Defendants raise several objections to the granting of the continuances which, they contend, defeated the purpose of rule 215.1. That purpose is to assure the timely and diligent prosecution of cases on the docket. Brown v. Iowa District Court for Polk County, 272 N.W.2d 457, 458 (Iowa 1978). Defendants claim error in granting the continuances.

The operation of rule 215.1 is not discretionary with the trial court, but the court does have discretion to grant continuances for just cause upon timely applications. Talbot v. Talbot, 255 Iowa 337, 340, 122 N.W.2d 456, 458 (1963). In the present case, the first continuance was applied for and granted prior to the January 1 dismissal date. The order continuing the case to July 1 did not remove the case from operation of rule 215.1; it merely moved the mandatory dismissal date back six months. See Brown, 272 N.W.2d at 458. If plaintiff had done nothing, the case would have been dismissed by operation of law. Plaintiff, however, prevented automatic dismissal by obtaining a second continuance prior to the July 1 dismissal date. See McKinney v. Hirstine, 257 Iowa 395, 398, 131 N.W.2d 823, 825 (1965).

Defendants do not claim the court had no jurisdiction to enter the second continuance order. Rather, they contend they were prejudiced by not being given 10 days under Iowa R.Civ.P. 117 to file their resistance before the ruling occurred. As previously mentioned, the resistance was brought to the court's attention by defendant's motion for rehearing.

The district court's findings were discretionary. They were made upon timely application prior to the dismissal date. Although we do not condone plaintiff's lack of diligence in prosecuting this case, and on a de novo review we might have reached a conclusion different than that of the trial court, we cannot say there was an abuse of discretion here. See State v. Morrison, 323 N.W.2d 254, 256 (Iowa 1982).

II. Damages not disclosed in answers to interrogatories. Defendants also urge that the district court abused its discretion in admitting evidence of damages not disclosed by plaintiff in his answers to written interrogatories posed by defendants. This evidence consisted of testimony concerning lost income and copies of medical bills for treatment of plaintiff's injuries resulting from the accident.

Iowa R.Civ.P. 125(b) requires a party to supplement his responses to interrogatories if (1) he knows the response was incorrect when made or (2) he knows the response, though correct when made, is no longer correct. Implicit in this rule are sanctions for noncompliance such as exclusion of evidence, continuance or other actions that a trial court deems appropriate. M-Z Enterprises, Inc. v. Hawkeye-Security Insurance Company, 318 N.W.2d 408, 414 (Iowa 1982).

Defendants sought to have the objectionable evidence excluded. In reviewing the trial court's refusal to apply sanctions under this rule, we apply the abuse of discretion test. Id. Plaintiff's failure to update his answers would have been sufficient grounds for imposition of sanctions, but under the circumstances of this case we cannot say that the court abused its discretion in failing to exclude the evidence.

III. Hearsay objections to exhibits 1-16. Exhibits 1-4 are calendars for the years 1979-82 on which plaintiff noted whenever he had a headache; exhibits 5-15 are the medical bills referred to in division II above; and exhibit 16 is a summary of the calendar entries. Defendants' hearsay objections to these exhibits were overruled. We affirm the trial court's rulings admitting these exhibits into evidence.

A. Calendar entries. Miller testified that either he or his wife made a notation on the calendar each day he had a headache. By the time of trial, however, he testified that he had no present recollection of when he had headaches: "The only way I can tell to remember the dates ... is to look back on the calendar...."

The common law rule in Iowa in effect at the time of trial allowed that "if a witness can testify that at or about the time a memorandum or entry was made he knew its contents, and knew it to be true, his testimony and the memorandum are both competent evidence." Jaeger v. Hackert, 241 Iowa 379, 382-83, 41 N.W.2d 42, 45 (1950); Walters v. Williams, 203 N.W.2d 383, 385 (Iowa 1973). The trial court has considerable discretion in determining admissibility of written memoranda under these rules, see Anderson v. Low Rent Housing Commission of Muscatine, 304 N.W.2d 239, 252 (Iowa 1981), and we find no abuse of that discretion here.

We hasten to point out, however, that under the Iowa Rules of Evidence which went into effect July 1, 1983, memoranda which record past recollections "may be read into evidence but may not [themselves] be received as an exhibit unless offered by an adverse party." Iowa R.Evid. 803(5).

B. Medical bills. Defendants contend that despite their stipulation to these medical bills, the bills were inadmissible hearsay. In their brief, however, defendants state, "This stipulation would have had the effect of waiving foundational requirements for the amounts reflected on the exhibits, and obviate the necessity of calling witnesses to provide same."

The court approved...