Newman v. Blom

Decision Date09 April 1958
Docket NumberNo. 49412,49412
Citation89 N.W.2d 349,249 Iowa 836
PartiesHillis C. NEWMAN, Sr., Plaintiff-Appellee, v. Emma Marie BLOM, Defendant-Appellant.
CourtIowa Supreme Court

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

Richards, Yost & Schafersman, Fremont, Neb., and Connolly & Connolly, Council Bluffs, for appellee.

LARSON, Justice.

Plaintiff sued for damages to his automobile and to his person as a result of an automobile collision. Defendant counterclaimed, and the jury returned a verdict for plaintiff in the sum of $13,045.83. Only a brief statement relative to the facts is necessary.

The accident occurred when defendant, proceeding northward on a straight, dry, paved, level section of Highway 275 about four miles north of Glenwood, Iowa, attempted to pass the automobile of plaintiff and another on the evening of October 21, 1955, at about 6 p. m. Defendant's attempt to return to her right lane of traffic resulted in a collision, seriously damaging both cars and injuring both parties, who were alone at the time. It was plaintiff's contention, sustained by an eyewitness, the driver of the car behind him, that defendant became alarmed by an approaching automobile from the other direction and cut over too sharply, colliding with the left side and front end of plaintiff's automobile. Both machines were thrown in the ditch on the right-hand side of the highway. Plaintiff's automobile did not overturn, so the mars and scratches and a broken door window on the left side of his vehicle furnished some physical evidence to sustain his contention. Defendant, on the other hand, claimed she had returned safely to the right-hand lane and that her vehicle was then struck in the rear by plaintiff's automobile, driving it off the highway and overturning it in the ditch. Two small dents in plaintiff's front bumper furnished the physical evidence relied upon by defendant. The testimony, viewed in a light most favorable to her, was far from convincing as to any negligence by plaintiff. She testified:

'Q. What part of your car was struck? A. I couldn't definitely say whether it was the center, back or the side or where but, _____.'

Her passing speed was about 55 or 60 miles per hour and she said she did not use her brakes. When asked, 'As you were passing the other car, it did not increase its speed, did it?' she answered, 'I wouldn't know.'

The assignment of errors listed raise the following issues: Did the trial court commit reversible error by (1) withdrawing defendant's counterclaim from jury consideration, (2) failing to admit certain interrogatories offered by defendant under R.C.P. 128, 58 I.C.A., (3) failing to admit into evidence the hospital records or the examining doctor's findings relating to plaintiff's physical or mental condition right after the accident, (4) failing to withdraw claims of permanent injuries from the jury and admitting into evidence expectancy tables, (5) submitting erroneous incomplete and confusing instructions to the jury, and (6) permitting an excessive verdict to stand, and failing to grant a new trial.

I. The trial court instructed the jury that 'the counterclaim filed by the defendant has been disposed of by the court on questions of law which arose during the trial.' As indicated, it seems quite evident that there was little or no evidence of plaintiff's negligence or that his acts were the proximate cause of the collision. While it is true the motion for a directed verdict against defendant's counterclaim made by plaintiff was based on the ground 'that the defendant was guilty of contributory negligence which as a matter of law would bar recovery herein,' and that the court did not rule on it specifically, the instructions effectively disposed of the question. There is no need here for a discussion of the effect of these court actions, nor as to the rules relating to when the issue of contributory negligence should be submitted to the jury. The verdict of the jury for plaintiff necessarily includes a finding that defendant's negligence was the proximate cause of the collision and that plaintiff was free from negligence which caused or contributed directly thereto. We have often held that error in submission of a counterclaim is without error where there is a verdict for the plaintiff. Cunningham v. Court, Iowa, 82 N.W.2d 292, and cases cited; Lauman v. Dearmin, 246 Iowa 697, 704, 69 N.W.2d 49, and cases cited; Fagen Elevator v. Pfiester, 244 Iowa 633, 56 N.W.2d 577; Slabaugh v. Eldon Miller, Inc., 244 Iowa 29, 55 N.W.2d 528; Smith v. Pine, 234 Iowa 256, 268, 12 N.W.2d 236. In Davidson v. Vast, 233 Iowa 534, 544, 10 N.W.2d 12, 18, we specifically held that any error in directing a verdict against a defendant on his counterclaim was without prejudice where the jury returned a verdict for plaintiff. Thus, regardless of the basis of the trial court's determination, there was no prejudicial error in failing to submit defendant's counterclaim herein.

II. Defendant's second assignment that the court violated R.C.P. 128 in refusing to admit into evidence the interrogatories propounded to plaintiff and answers thereto, cannot be sustained. The offer, which the court rejected, related to all 28 of the interrogatories propounded to plaintiff and the answers given prior to the commencement of this trial. It was not confined to what is now claimed the relevant one numbered 20. Defendant's offer stated: 'Now, as a part of the cross-examination of the witness, Hillis C. Newman, the defendant offers and reads into evidence the interrogatories propounded to Hillis C. Newman, Sr. herein, which were filed on June 16, 1956, and the answers thereto which were filed by the plaintiff on February 19, 1957.' (Emphasis supplied.) Plaintiff objected, stating: '* * * they are incompetent, irrelevant and immaterial. I don't think that there is any evidence introduced here that contradicts or varies in any way the questionnaire. Unless there is, I don't see any reason for them to be in evidence.' The court properly held them inadmissible.

Rule 128, R.C.P., provides: 'The answers to interrogatories, whether contained in the written answers * * * may be used only as follows: (1) To contradict or impeach the testimony of the interrogated party as a witness. (2) As admissions of the interrogated party. * * *'

Rule 121, R.C.P., under which these interrogatories were permitted, is predicated upon the necessity of the interrogating party to adequately prepare for trial. Myers v. Stratmann, 245 Iowa 1060, 1062, 1064, 65 N.W.2d 356, 359, and cases cited. We said therein as to rule 128, R.C.P.:

'It is proper to keep in mind that * * * the purpose of interrogatories is not to produce 'evidence for the record.' * * * That Rule (R.C.P. 128) does not purport to define the purpose of interrogatories. It merely provides that the answers may be used to contradict or impeach the testimony of the interrogated party or as admissions by him. As said by the Advisory Committee, Rule 128 illustrates that the purpose 'is not to produce evidence for the record but information to enable the party to prepare for trial.' 2 Cook, Iowa Rules of Civil Procedure (Rev. Ed.) page 13.'

These rules 121 and 128, R.C.P., effective when this case was tried, of course, have been superseded by new rules July 4, 1957.

Also as to limitations of interrogatories as evidence, see Stiefel v. Wandro, 246 Iowa 807, 819, 820, 68 N.W.2d 53, and cases cited.

The 28 interrogatories covered many different subjects. No. 20 was: 'State whether or not on March 18, 1945, you had what doctors call osteo-arthritis present in your spine.' In reply the plaintiff answered: 'That as to Interrogatories Nos. 17 to 21 inclusive the answers are 'yes'.'

On cross-examination during the trial plaintiff was asked:

'Q. Now in addition, on March 18th, 1945, you had osteo-arthritis present in your spine. A. Something. I can't tell you.

'Q. Do you recall--you were present in court when Dr. Schrock testified at Fremont? A. Yes.

'Q. Do you recall Dr. Schrock being asked this question and he making the following answer? Now,--(Objection sustained as improper cross-examination).

'Q. Well, what is the fact as to whether or not you had osteo-arthritis present in your spine when Dr. Schrock examined you? A. I wasn't conscious of it. I don't knew it if I did.'

It is not clear that under this record there was such a denial of any knowledge of a spine ailment on March 18, 1945, as would require the admission of all interrogatories, or even Interrogatory No. 20. The plaintiff admitted an ailment, but it is reasonable to believe that all he denied was that he knew its name at the time Dr. Schrock examined him. This is not, we think, such a denial as to permit the use of such interrogatories for impeachment. We are satisfied the failure of the trial court to permit such use is not so serious here as to require reversal, for the record is replete with testimony and admissions as to a serious spine ailment and plaintiff's poor physical condition. Jaeger v. Hackert, 241 Iowa 379, 389, 41 N.W.2d 42, and cases therein cited; Clayton v. McIlrath, 241 Iowa 1162, 1167, 44 N.W.2d 741, 27 A.L.R.2d 307. While it is true parties are entitled to additional proof of relevant facts in the case, Gearhart v. Des Moines R. Co., 237 Iowa 213, 21 N.W.2d 569, the medical name attached to this ailment cannot be deemed so important as to require the use of usually inadmissible interrogatories for further explanation or impeachment.

III. Defendant's third assignment that the court erred in failing to permit into evidence the medical record of plaintiff made at the hospital where he was taken immediately after the accident, poses a new question in this jurisdiction. Defendant's Exhibit 24 was identified by the medical record librarian for the hospital as plaintiff's medical record from October 21, 1955, to October 22, 1955. She testified it was made in Dr. Martini's hand and had...

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