Reed v. Incorporated Town of Wellsburg

• Decision Date: 12 March 1917
• Docket Number: 31062
• Citation: 161 N.W. 660,179 Iowa 593
• Parties: ADA REED, Appellant, v. TOWN OF WELLSBURG, Appellee
• Court: Iowa Supreme Court

161 N.W. 660

179 Iowa 593

ADA REED, Appellant, v. TOWN OF WELLSBURG, Appellee

No. 31062

Supreme Court of Iowa, Des Moines

March 12, 1917

Appeal from Grundy District Court.--FRANKLIN C. PLATT, Judge.

ACTION to recover damages for personal injury. Verdict for the plaintiff. Motion for a new trial by the defendant. New trial granted. Plaintiff appeals.

Affirmed.

Bryson & Bryson, for appellant.

A. B Lovejoy and Williamson & Willoughby, for appellee.

GAYNOR C. J. LADD, EVANS and SALINGER, JJ., concur.

OPINION

GAYNOR, C. J.

This is an appeal from the action of the district court in granting a new trial. The action was brought to recover damages for alleged personal injury sustained by plaintiff as a result of a fall upon a sidewalk. The facts upon which she based her right to recover are that the defendant city negligently allowed snow and ice to accumulate upon and cover its sidewalk, rendering the same unsafe and dangerous for the use of persons passing or attempting to pass over it. On the 5th day of March, 1912, while she was attempting to use the walk in the usual and ordinary way, and exercising due care for her own safety, she was thrown violently upon the walk, and sustained a fracture of her left leg and a dislocation of her ankle. The condition of the sidewalk aforesaid was the proximate cause of her fall and the injuries resulting therefrom. These are the allegations of her petition.

The cause was tried to a jury and verdict returned for the plaintiff. This verdict was returned on the 12th day of December, 1913. On the request of the defendant, it was given 60 days in which to file a motion for a new trial, and on February 11, 1914, the defendant filed a motion alleging: (1) That the verdict is contrary to law; (2) that the verdict is contrary to the evidence; (3) that the verdict is contrary to the instructions of the court; (4) that the verdict does not have sufficient support in the evidence; (5) that the verdict is contrary to the weight of the evidence, so as to indicate that it is the result of passion and prejudice; (6) that the verdict is against the weight of the evidence; (7) that the court erred in admitting certain evidence offered by the plaintiff over the objection of the defendant; (8) that the court erred in refusing to admit certain evidence offered by the defendant; (9) that, on the whole record, plaintiff was not entitled to a verdict in her favor; (10) that the evidence of the plaintiff herself as to how she fell, as to the manner in which the accident happened shows conclusively that the accident could not have resulted from her slipping on the ice.

On the 3d day of September, 1914, the defendant filed an amendment to its motion for a new trial, alleging misconduct of counsel in argument to the jury. This amendment to the motion was supported by affidavits. The first complaint made is based upon an alleged error committed by the court in permitting the filing of this amendment at so late a date. We may say that that objection should have been sustained. The amendment injected an entirely new ground as a basis for a new trial. It was not filed within the time given defendant in which to file a motion for a new trial. In the interests of a speedy disposition of controversies before the court, the statute has wisely limited the time in which motions for a new trial shall be made by the losing party. It is the duty of the party to disclose then, or within the time given for the filing, the wealth of his complaint, and after the expiration of the time, he has no right to inject an entirely new ground as a basis for the relief asked. This rule is announced in Dutton v. Seevers, 89 Iowa 302, 56 N.W. 398, in which it is said:

"Our statute provides that the application for a new trial 'must be made at the term and within three days after the verdict * * * is rendered, except for the cause of newly discovered evidence.' Code Section 2838. It was held in Sowden v. Craig, 20 Iowa 477, that under Revision Section 3114, which is substantially like Section 2838 of our present Code, a motion for a new trial, filed within three days, might be afterward amended, provided the amendment 'was germane and proper to the object and purpose of the original motion, and could not in any legitimate sense be regarded as a new motion.' Tested by this rule, was the amendment properly allowed? The grounds stated in the original motion, in substance, were that the court erred in giving its instructions, in refusing those asked by the plaintiff, and in the admission and exclusion of certain evidence. The ground of the amendment upon which the court granted a new trial was that the court erred in failing to instruct the jury that the burden of proof to show that the maintenance of the child by Dutton was gratuitous, rested upon the defendant."

The court further said:

"The ground stated in the original motion, to which it is claimed the amendment is germane is that the court erred in its instructions given. * * * The complaint in the amendment is that the court failed to instruct touching the burden of proof. That is clearly new matter, in no way related to the ground stated in the original motion. The amendment, so far as it related to a failure to instruct as to the burden of proof, was, in legal contemplation, a new motion, containing a ground for a new trial, not germane to those stated in the original motion, and hence ...