Oldsen v. Jarvis

• Decision Date: 11 June 1968
• Docket Number: No. 52937,52937
• Citation: 159 N.W.2d 431
• Parties: Charles B. OLDSEN, Executor of the Estate of Boyd C. Oldsen, Deceased, Appellee, v. Gary JARVIS and Bernard Jarvis, Appellants.
• Court: Iowa Supreme Court

Page 431

159 N.W.2d 431

Charles B. OLDSEN, Executor of the Estate of Boyd C. Oldsen, Deceased, Appellee, v. Gary JARVIS and Bernard Jarvis, Appellants.

No. 52937.

Supreme Court of Iowa.

June 11, 1968.

Theodore T. Duffield, Des Moines, for appellants.

Thomas L. McCullough, Sac City, for appellee.

GARFIELD, Chief Justice.

This is a law action to recover from the operator and owner of an automobile, for negligently causing the death of plaintiff's decedent, a pedestrian in a crosswalk. Defendants have appealed from judgment on jury verdict against them.

Three errors are assigned: (1) Claimed excessiveness of the verdict for $15,000; (2) failure to grant a mistrial because of alleged improper jury argument by plaintiff's counsel; and (3) allowing the chief of police to testify as to location and length of skid marks when, it is said, the testimony was based on hearsay. The first of these is relied upon most and we consider it first.

I. The fatal injury occurred in Sac City August 27, 1966 about 8:35 p.m. when decedent, age 83, was walking north in a crosswalk across Main Street (U.S. Highway 20). A car driven by defendant Gary Jarvis, age 18, with the consent of the owner, Gary's father Bernard Jarvis, struck decedent when he was nearly half way across the street. Decedent's doctor happened to witness the accident and immediately went to his aid. A 'hypo' of 100 milligrams of demerol for relief of pain was administered at the scene. An ambulance was called and decedent was admitted to the hospital in Sac City at 9 o'clock. A second 'hypo' was given at 10:10 when the doctor thought the first one was starting to wear off. Decedent died at 10:24.

X-rays taken after death revealed a massive fracture of the left pelvis from the top down through the lower pelvis and a fracture of the right hip and knee. Death came as a result of shock due to the injuries and internal bleeding. Decedent complained of a lot of pain and of numbness and pain in both legs; he repeated over and over 'Boy, oh boy, it hurts so bad.' He was conscious until a few moments before his death and knew he had been horribly injured.

Decedent was a retired carpenter and cabinet maker. His income tax returns for 1961 and later years gave his occupation as retired. He had come to this country from Germany in 1909 at the age of 26. He was married about 1921. They adopted their only child, a son, at the age of 18 months. He lived in California about the last 15 years. Decedent sent him through Iowa State College and he became an engineer. Decedent's wife died about three years before he did.

Decedent had a deformed left elbow caused by a broken arm sustained in a fall and an inguinal hernia. Otherwise he was in good health for one of his age. Before he retired he was a hard worker, did his work well and was thrify. He was well liked.

His tax returns for the last five calendar years show no income from his work. The only income reported was from rentals. He also received about $100 a month social security. In 1954 decedent purchased an old fire station for $2339.41 which was remodeled into offices below and apartments above. Decedent did as much of the remodeling work as he could. In 1958 a new water system was installed at a cost of $1364.51. Decedent lived in one of the apartments after his wife died and looked after the building, making minor repairs, watching the furnace, and sweeping.

Before his wife's death she and Mr. Oldsen lived in one of four living units in a remodeled older home. He sold this building after his wife died for around $11,000 with which he paid off the mortgage on the fire station building. In addition to that building decedent owned a vacant lot the adopted son valued at $1500. The remodeled fire station and contents he valued at $15,000. Decedent had $1524.75 in the bank when he died, an old car valued at $100 and $1000 life insurance.

Decedent owed a note at the bank for $1000 or $1500. His hospital bill was $91.70, his doctor bill $60 and the bill for his funeral and burial was $1102.08. Social Security paid about $200 to $250 of this last amount.

The Commissioner's Standard Mortality Tables show the average life expectancy of a person aged 83 is 4.89 years.

II. The jury was instructed that for plaintiff to recover, the burden was upon him to establish by a preponderance of the evidence that: (1) defendant driver was negligent in some particular as charged by plaintiff; (2) such negligence was the proximate cause of the accident and resulting death and damage; and (3) the estate suffered some pecuniary damage and the extent thereof.

On the measure of recovery the jury was instructed it could allow: (1) the fair and reasonable value of medical and hospital service as shown by the evidence; (2) such amount as would fairly and reasonably compensate for decedent's pain and suffering adding that such amount cannot be measured by any exact or mathematical standard but must rest in the jury's sound discretion based upon a fair and impartial consideration of the evidence; (3) the present worth or value of the estate decedent would reasonably be expected to have saved and accumulated as a result of his own efforts from the date of his death if he had lived out the term of his natural life; and (4) reasonable interest on the sum paid for funeral expenses, not exceeding what is reasonable and proper, for the time the estate was compelled to pay such expenses in advance of the normal date of death.

The instruction went on to say the total recovery for the four items mentioned, i.e., medical and hospital services, pain and suffering, death of decedent and funeral expenses, must be limited to the amount shown by the evidence.

No objection was made to any of the instructions and they therefore stand as the law of the case. Hurtig v. Bjork, 258 Iowa 155, 157--158, 138 N.W.2d 62, 64, and citations. The instruction on measure of plaintiff's recovery closely follows Instructions 3.09, on pain and suffering, and 3.10, on death, of Uniform Jury Instructions prepared by a committee of Iowa State Bar Association and accords with many of our decisions.

The trial court's ruling on defendants' motion for new trial contains this: 'Most seriously contended is that the verdict is excessive. The court has given considerable thought to requiring a remittitur. The judgment is for $15,000 and the evidence of loss to the estate of accumulations would not support so high an amount. There is, however, considerable evidence as to excruciating pain suffered by decedent during the short period he lived following the accident. This evidence was extremely strong. Any attempt as required by the law of damages to equate money with suffering is bound to be imperfect and fraught with a certain amount of danger. Upon considerable reflection this court determines it should not interfere.'

We have held many times we will interfere with a verdict because of its size where it is lacking in evidential support although there may be no passion or prejudice. Allen v. Lindeman, 259 Iowa 1384, 1399, 148 N.W.2d 610, 620--621 and citations; In re Estate of Ronfeldt, Iowa, 152 N.W.2d 837, 847.

It is of course true, as the jury was instructed, that damages for pain and suffering cannot be measured by any exact or mathematical standard and rest in the sound discretion of the jury based upon a fair and impartial consideration of the evidence.

III. The trial court's conclusion is inescapable that the evidence of pecuniary loss to the estate of accumulations from decedent's own efforts does not support such an amount as $15,000. In fact the only theory on which this verdict may be upheld is that the evidence of pain and suffering during the two hours decedent survived the injury supports an award for this item of damage that equals a considerable part of the total recovery. Defendants think $1000 is the highest amount allowable for pain and suffering here. Plaintiff on the other hand thinks a fair award for pain and suffering would be between $6000 and $10,000.

Each side cites a few decisions as supporting its view. A reading of them and many others on the subject affords persuasive proof of the wisdom of the familiar statement in our opinions that a comparison of verdicts is of little value in determining whether an award in a particular case is excessive. Each case must be evaluated according to the evidence produced in it. Henneman v. McCalla, 260 Iowa 60, 148 N.W.2d 447, 459; Hurtig v. Bjork, supra, 258 Iowa 155, 162--163, 138 N.W.2d 62, 67 and citations.

'The amount of damages that may properly be awarded in any particular case depends upon the facts and circumstances of that case; hence, the verdict and judgment in another case of similar character is not a controlling criterion, but is at best an imperfect analogy.' 22 Am.Jur.2d, Damages, section 368, page 476.

We think an award of $6000 to $10,000 for pain and suffering of decedent during the short time he survived the accident is much more than a fair consideration of the evidence supports. As stated, decedent's physician (who had examined him only ten days previously) witnessed the accident, came to his immediate aid and administered a 'hypo' for relief of pain. Another 'hypo' was given at the hospital when the doctor thought the first was wearing off. Defendant complained of numbness in his legs as well as severe pain from the injury. Although the 'hypos' left decedent with a lot of pain, they--together with the constant attention of the doctor at the hospital--must have helped materially.

The doctor and hospital bills were comparatively nominal--$151.70 for both. Interest on the cost of the funeral and burial, disregarding the fact Social Security paid $200 to $250 of it, for five years would be $275. If decedent were to outlive the average expectancy of a person 83, $55 for each added year should be added to the $275 in computing this item of damage. Aside from these small sums and a fair...