Pierce v. Heusinkveld

• Decision Date: 02 May 1944
• Docket Number: 46320.
• Citation: 14 N.W.2d 275,234 Iowa 1348
• Parties: PIERCE v. HEUSINKVELD et al.
• Court: Iowa Supreme Court

14 N.W.2d 275

234 Iowa 1348

PIERCE v. HEUSINKVELD et al.

No. 46320.

Supreme Court of Iowa

May 2, 1944

Paul W. Steward, of Des Moines, and Dyer, Jordan & Dyer, of Boone, for appellants.

Doran Doran & Doran, of Boone, for appellee.

WENNERSTRUM Justice.

Plaintiff, in an action at law, sought damages for claimed personal injuries sustained as the result of a collision between an automobile, in which he was riding, owned and driven by his brother, and a motor truck owned by Henry J. Heusinkveld, who is one of the defendants, and driven by the other defendant Henry G. Heusinkveld. In a separate count to his petition the plaintiff sought damages and judgment, by reason of an assignment of the claim of his brother, for damages to his automobile and for loss of time from work. Several grounds of negligence were alleged in plaintiff's petition. He originally asked for damages in the amount of $1050.35 in the first count of his petition and in a second count he asked for the further sum of $46.75 as damages sustained by his brother. Thereafter the first count of his petition was amended, wherein he asked for damages in the amount of $2050.35 and in a third amendment to his petition plaintiff claimed damages in the total amount of $10,068.35. The defendants in their answer denied generally any responsibility for the collision and the resulting damages. The court submitted the issues to the jury, which returned a verdict in favor of the plaintiff in the amount of $3000. Defendants have appealed.

The collision, which resulted in the litigation now before us for review, occurred July 12, 1941 on what has been referred to as the Old State Road at a point about four miles south and east of the city of Boone, Iowa. This road is a county trunk highway and extends in a general northerly and southerly direction. At or near the point where the two vehicles collided it is intersected by a road from the west only. It is the claim of the appellee that the car in which he was riding, had entered the intersection and had left or was leaving the intersection when the collision occurred between the roadster in which the appellee was riding and the truck operated by Henry G. Heusinkveld.

It is the claim of the appellants, which is in part supported by the evidence, that the Heusinkveld truck, prior to the collision, was proceeding in a southerly direction at a speed not exceeding 35 miles per hour. As a result of the collision between the vehicles previously referred to, the appellee, Dale Pierce, received injuries to his knee and bruises on the abdominal portion of his body. He received medical attention the evening of the accident and shortly thereafter was hospitalized for approximately one week. At the time of the trial, which was some nine months subsequent to the accident, the appellee had apparently recovered from the bruises received but had lost weight, was running a temperature, had evidences of high blood pressure and an irregular heart. There was medical testimony that these last referred to conditions were symptoms of tuberculosis. The consideration of the evidence presented in regard to appellee's claimed tubercular condition and claimed errors relative to certain instructions necessitate our detailed consideration of the questions presented.

I. Two of the claimed errors relate to instructions given by the court. It is the contention that there is not sufficient evidence to justify the submission of the instructions as given.

It is the claim of the appellants that the court was not justified in giving an instruction based upon one of the claimed specifications of negligence which charged the driver of the truck with failing to yield one-half of the traveled way. It is also contended that the court erred in giving an instruction based upon appellee's specification of negligence that the brakes were not applied. We believe that these two claimed errors can be jointly commented upon.

In regard to the complaint made relative to the giving of the instruction as to the claimed failure of the driver of the truck to yield one-half the traveled way it should be kept in mind that it is the appellants' contention that this is an intersection case and the car in which the appellee was riding had not passed out of the intersection and had not reached a place on the highway where it could be claimed that the driver of the truck should have yielded him one-half of the right of way. It is disclosed by the record that there is a variance in the testimony presented by witnesses for the appellants and the appellee as to the place where the accident occurred. There is also a variance in the testimony presented by the respective parties relative to the condition of the brakes on the truck. Under the circumstances and the record as presented, we feel that the court was justified in submitting these two instructions. The particular complaint to the instruction relative to the brakes is that the appellee's original contention in his petition was that the driver of the truck failed to apply the brakes at all when, in fact, appellee's evidence showed that if anything the brakes were applied but by reason of their defective condition the truck was thrown into the course of the car in which the appellee was riding. We feel that this contention is too discriminating in its interpretation of the facts as disclosed by the record.

We are conscious that it would be error to submit a ground of negligence not supported by the evidence. Jakeway v. Allen 227 Iowa 1182, 290 N.W. 507; Porter v. Decker, 222 Iowa 1109, 270 N.W. 897; Isaacs v. Bruce, 218 Iowa 759, 254 N.W. 57. However, the statement found in Lee v. Conrad, 140 Iowa 16, 21, 117 N.W. 1096, 1098, seems quite applicable to the complaint made by appellants relative to these instructions. In this case it was said:

"The issues with reference to which the instruction was given appeared in the testimony and that was enough to justify an instruction by the court."

The comments in Newbury v. Getchel & Martin Lumber & Manufacturing Co., 100 Iowa 441, 452, 453, 69 N.W. 743, 746, 62 Am.St.Rep. 582, are also applicable to the question now being considered. It was there said:

"The objections to it are that there is no evidence that Page told plaintiff that he should obey the orders and commands of Garrity, or that Martin knew that plaintiff was under the direction of Garrity, and was required to obey his orders.

"These objections are without foundation, for we think there is evidence to establish both propositions. It may be that the preponderance of it is to the contrary, but we are not dealing with a question as to the weight of the evidence. *** If we were to consider the instruction apart from the evidence in the case, it is likely that it would be condemned. But, as applied to the evidence, it was a correct statement of the law ***."

We do not feel that the evidence in this case was such that we can say that the instructions given were wholly without support in the evidence.

II. It is the further claim of the appellants that appellee's counsel was guilty of prejudicial conduct which deprived them of a fair and impartial trial. The complaints of the appellants relative to the conduct of appellee's counsel is not restricted to any one portion of the trial but is commented upon in connection with several instances that occurred. We shall quote a portion of the cross-examination of one witness and set out certain proceedings. We shall later comment upon the manner in which the trial was conducted. In the cross-examination of the appellants' witness, Robert Blanchard, the following examination took place.

"Q. Did you have a liquor permit book then? A. No, I have never had one.

"Q. Did Wood? A. No.

"Q. Did Heusinkveld? A. Not to my knowledge, no. ***

"Q. Did you go into any of the beer taverns after you went down town that night before you ate? A. No.

"Q. What? A. No.

"Q. You drink beer, don't you? A. Do I drink beer?

"Q. Yes. A. I-

"Mr. Steward: This is objected to as irrelevant and immaterial, not proper cross-examination.

"The Court: Well, overruled. Defendants except.

"A. Do I drink beer? I have tasted it, I am not an habitual drinker of beer, no.

"Q. Oh, maybe not, but you like a glass of beer now and then, don't you? A. Yes.

"Q. You had some that night, didn't you? A. No.

"Q. What? A. No.

"Q. Are you sure about that? A. Yes.

"Q. How can you be sure about that when you are not sure where you ate? A. I just am sure.

"Mr. Steward: This is objected to as argumentative, irrelevant and immaterial.

"The Court: Well you tell us in your own way.

"*** Q. What were you boys going out to a skating rink at seven o'clock on the afternoon of July, 1941, for?

"Mr. Steward: Objected to as irrelevant and immaterial, repetition, he has already said they were going out there to skate.

"The Court: Well you tell us yourself. Defendants except.

"A. We were out to go roller skating.

"Q. What? A. We were out to go roller skating.

"Q. What did you go out so early for? A. I don't know why we were.

"Q. Roller skating didn't start until after it got dark, did it? A. I don't know what time it started.

"Q. Oh, you had been there before, hadn't you? A. Once, I think.

Q. When was that now? A. About a week before I think.

"Q. Yes. Where were you on the 4th of July? A. I think I was in Des Moines.

"Q. You think you were in Des Moines? A. Yes.

"Q. How did you get to Des Moines from Boone?

"Mr Steward: If the Court please, I think this ought to stop some place. It is all irrelevant and immaterial and not proper cross-examination.

"The Court: Well I can't tell what counsel is after, I suppose he is leading up to something, I don't know.

"Mr Steward: Well he is certainly...