Mundy v. Olds

• Decision Date: 12 March 1963
• Docket Number: No. 50809,50809
• Parties: Charles W. MUNDY, Appellant, v. Francis M. OLDS, Appellee.
• Court: Iowa Supreme Court

Page 469

120 N.W.2d 469

254 Iowa 1095

Charles W. MUNDY, Appellant, v. Francis M. OLDS, Appellee.

No. 50809.

Supreme Court of Iowa.

March 12, 1963.

McMullin, Test & Baird, Des Moines, for appellant.

Johnson & Johnson, Knoxville, for appellee.

SNELL, Justice.

This is the second appeal involving the same highway accident. See Mundy v. Olds, 252 Iowa 888, 109 N.W.2d 241.

At about 7:00 P.M. February 1, 1959 plaintiff, accompanied by his wife and infant child, was driving north on highway no. 14 just south of Knoxville. The paving was 20 feet wide with shoulders 8 to 10 feet wide. The weather was cold and the highway icy. Snow had been pushed by the highway maintenance crew to the shoulder of the road on plaintiff's right forming a snowbank. Plaintiff's car ran out of gas. His car was on the east or right-hand side of the highway. Plaintiff and his wife testified that his car was against the snowbank and as far to the right as possible and completely off the pavement. Defendant and a deputy sheriff investigating the accident testified that the car was one-third to one-half of its width on the pavement.

Plaintiff saw the lights of a vehicle approaching from the south or rear. The lights were from defendant's car. When defendant's car was about one-half mile away plaintiff alighted from his car hoping to get help from the approaching motorist. There is a dispute in the evidence as to whether he was standing on or off the pavement. Plaintiff says he was off the pavement. Plaintiff's testimony as to what he did is summarized (with conclusions added) by his counsel in these words: 'When defendant's vehicle was approximately one-half block distance from the plaintiff's vehicle, the plaintiff determined that the defendant would likely not change its course of travel thus creating a hazard to plaintiff. In a confused state of mind caused by all of the attending circumstances and conditions then existing, plaintiff pressed himself up against his own automobile with his face away from the traveled portion of the highway. The next thing plaintiff recalled was awakening in the hospital on the following day.' The words just quoted are the conclusions of counsel and embellish but do not misquote the record.

Defendant says that when within 500 feet of the accident site he was driving between 30 and 35 miles per hour and looking straight ahead. At that time he saw no cars or lights. As he approached he first saw a car partly on and partly off the pavement. Defendant pulled onto the right shoulder attempting to stop. He could not stop. We quote from defendant's testimony:

'I cut back out onto the highway and attempted to go on around on the left side. As I got closer I took further notice of the position of this car ahead of me on the highway. It looked instead of being completely on the highway as if it had two wheels just off the traveled portion of the road and the rest of the car and the other two wheels sitting on the traveled portion. As I swung back off of the right shoulder I slid, momentarily losing control of my vehicle. I slid into the back of the other vehicle sitting on the right side of the road. I guess the cars bumped; I don't know for sure. Anyway I know my car was fishtailing, sliding back and forth across the highway. After I regained control and straightened it up I turned around and came back. I think that my car struck the other car as I went by. I am not sure. I did see a man standing on the outside of the car ahead of me approximately three feet to the left of his left side of his car. This would be to the west of his car. He would have to be standing a little over the middle of the right-hand portion of the traveled part of the right-hand side.'

The uncontradicted record is that plaintiff was struck by defendant's car and that defendant's car was out of control. Where plaintiff was standing was in dispute and was an issue for the jury.

Plaintiff's counsel referred to the plaintiff as confused. From the record it would appear that the defendant while testifying was also confused. He said that he was driving with his city lights on at that time and that he could see 35 or 40 feet ahead of them, maybe a little more. He saw the car at about 35 or 40 feet or a little more than that. Upon refreshing his memory from the record of the former trial he found that he had previously testified that he saw the car 50 to 75 feet ahead of him. He said he would hesitate to estimate how many feet to the rear he was when starting off the highway and attempting to stop.

On The basis of defendant's testimony as to how far ahead of his car he could see, plaintiff insists that there should have been submitted to the jury an additional specification of negligence and instruction. Plaintiff insists that the jury should have been instructed on the law as to head lamps.

This case was first tried in March, 1960 resulting in a verdict for the plaintiff in the amount of $1,102.26. A motion for a new trial based on inadequacy of the verdict was sustained. On April 16, 1960, three days after the trial court's ruling in favor of a new trial, plaintiff filed in the district court his second amendment to petition adding an additional specification of negligence in the following words:

'In operating his vehicle upon a highway within the State of Iowa between one-half hour after sunset and one-half hour before sunrise without lighted head lamps directed high enough and of sufficient intensity to reveal persons and vehicles at a distance of at least three hundred fifty (350) feet in advance of his said vehicle in violation of the law of the State of Iowa.'

Four days later defendant filed a denial of this additional allegation.

Defendant appealed from the granting of a new trial and from an adverse ruling on his motion for judgment notwithstanding the verdict. The judgment of the trial court granting a new trial was affirmed on May 2, 1961.

Retrial of the case in the district court began on December 18, 1961. After the jury was selected and sworn plaintiff's counsel in the absence of the jury asked for permission to amend by adding a specification in substance, the same as was included in his second amendment to petition set out above. The court commented that there was an amendment covering that specification. Plaintiff's counsel advised the court that there was no written amendment to that effect. It is obvious that counsel was mistaken and misled the trial court. Defendant's counsel objected to the filing of a new amendment as not timely and for the further reason that it raised an issue not previously in the case and on which defendant was not prepared to defend. Plaintiff's request for permission to amend was denied. The request was renewed at the close of the testimony and was again denied. Plaintiff's requested instruction covering the subject was refused by the court.

I. In claiming error in these respects plaintiff argues from separate but related foundations. He claims prejudicial error was committed when the court and counsel failed to acquaint themselves with the pleadings. The presiding judge had not presided at the first trial. He was not as familiar with the status of the pleadings as counsel. The written amendment referred to had not been in the first trial but was filed subsequent to the ruling for a new trial and twenty months prior to the second trial.

Plaintiff's counsel advised the court that there was no amendment relating to defendant's lights. The error in this respect was not chargeable to the trial court. The court had the right to rely on the statement of counsel as to the issues presented by his own pleadings. Counsel apparently forgot what he had previously filed and any mistake as to what was in the record is not, under the circumstances, chargeable to the trial court. The general rule is stated in 66 C.J.S. New Trial § 82b in these words:

'As a general rule, mistake, error of judgment, inadvertence, or negligence of counsel in presenting or defending a case is insufficient cause for awarding a new trial.'

No issue as to this April, 1960 amendment was ever raised in the trial court. 'An issue or contention nor raised in the lower court will not be considered for the first time on appeal.' Branderhorst v. County Board of Education, 251 Iowa 1, 3, 99 N.W.2d 433, 434.

II. The only issue raised in the trial court was plaintiff's right to amend during the second trial and this is the only issue properly before us.

On the 26th day of August, 1961, long before the case came on for retrial, plaintiff filed a certificate of readiness for trial certifying that the issues were joined and the case ready for trial in all respects. The certificate of readiness is to advise the court that issues have been joined and that preliminary proceedings have been completed and also to advise adverse counsel to the same effect. Pursuant to his own mistaken understanding of the record plaintiff's counsel after trial had begun and again after the evidence had been concluded attempted to amend by adding an additional specification of negligence.

Plaintiff argues vigorously, supported by substantial authority, that amendments to conform to the proof are ordinarily allowed and infrequently disallowed. That such is the law is not denied. The cases are in accord with the provisions of rule 88, Rules of Civil Procedure, 58 I.C.A., which provides in part as follows:

'The court, in furtherance of justice, may allow later amendments, including those to conform to the proof and which do not substantially change the claim or defense.'

In Ver Steegh v. Flaugh, 251 Iowa 1011, 1021, 103 N.W.2d 718, 724, it is said:

'The trial court has a broad discretion in the matter of allowing amendments to pleadings, especially those to conform to the proof. We have frequently said that to allow such an amendment is the rule, to deny it is the exception.'

While the allowance of amendments may be the rule and denial the exception,...