Semler v. Oertwig, 46355.
| Decision Date | 14 December 1943 |
| Docket Number | No. 46355.,46355. |
| Parties | SEMLER v. OERTWIG et al. |
| Court | Iowa Supreme Court |
SEMLER
v.
OERTWIG et al.
No. 46355.
Supreme Court of Iowa.
Dec. 14, 1943.
Appeal from District Court, Decatur County; Homer A. Fuller, Judge.
This is an action at law to recover judgment for damages sustained by the estate of the intestate, whose death is alleged to have been caused by the defendants in the negligent operation of a motor truck. From a judgment on a verdict by the jury, and from other adverse rulings, the defendants have appealed.
The judgment is reversed.
[12 N.W.2d 266]
R. B. Hawkins, of Leon, and Herrick, Sloan, & Langdon, of Des Moines, for appellants.
Hoffman & Carter, of Leon, and O. M. Slaymaker, R. E. Killmar, and D. D. Slaymaker, all of Osceola, for appellee.
BLISS, Justice.
About eleven o'clock on the night of August 25, 1941, plaintiff's intestate was driving his 1929 model Pontiac Coupe westward on paved highway No. 69, between Davis City and Lamoni, in Decatur County. His wife, the plaintiff, and Mamie Bonnett, a guest, were riding with him. They were proceeding to their home in Lamoni. The car had just descended the western slope of a small hill, and after traversing a short level stretch, was going up another hill, with less than a five-percent grade, and was about 500 feet from its top, when the car was struck on the rear left hand corner, by the truck, which was also traveling westward. The occupants of the coupe, according to the testimony of Mrs. Semler and Miss Bonnett, were thrown out and Mr. Semler died a few days later from injuries received. Each of the lady occupants has brought an action against these
[12 N.W.2d 267]
defendants. The concrete slab of the roadway is eighteen feet wide and the north shoulder is five or six feet wide, and it, and a shallow ditch beyond, were grassed over to the fence. Both vehicles were traveling on the right or north side of the paved slab, and the collision occurred on that side. The coupe, according to the lady occupants, was traveling between fifteen and twenty miles an hour at the time of the collision. After it was struck the coupe went about fifty feet westward and stopped, partly on the north shoulder and partly in the ditch, in an upright position, facing northeast. The left rear of the car was quite badly demolished. It had a value of about $100 before the collision. It had been raining intermittently along the routes of both vehicles that evening. It was not raining at the time of the collision, but there was much lightning and thunder. It was quite misty and foggy, and the air was so full of moisture, that drops of water would form on the windshield and require the use of the wiper.
The truck was a ton and a half 1941 Ford V-8 and had been driven about a month and was in good operating condition in all its parts. When empty it weighed about 5,000 pounds. The defendant, Norman Williams, owned the truck, but was not on it at the time of the collision. It was being operated at that time by his codefendant, Oertwig. A brother of Williams was on the truck but was asleep prior to and at the time of the collision. The truck was empty and was being driven from Des Moines to Kansas City for a load of fruit and vegetables.
This case had been tried once before, early in 1942, and there was a judgment for the defendants on a verdict of the jury. The judgment was set aside by the judge then presiding, for reasons not appearing in this record. Oertwig testified at that trial, but was a member of the United States Navy, and on the high seas, at the second trial. When we speak of his testifying hereinafter, we will mean that testimony of his was read from a transcript of the former trial.
Oertwig testified that he had been driving at about forty miles an hour where the visibility permitted it, and was driving at that speed just prior to the collision. He testified that though his lights were lighted and he was keeping a lookout, he did not see the coupe until the truck was almost upon it and that he immediately turned to the left across the black line but did not quite clear the left rear corner of the coupe. The right headlight was injured as was also the right end of the bumper and the right front fender was crumpled over the wheel, interfering with its being turned. The front axle was sprung. The truck went along on the left side of the pavement, and after turning to the right across the paving, came to a stop across a corn-field fence.
The plaintiff and Miss Bonnett testified that the right rear tire of the coupe blew out about a half-mile before the collision, and all of them got out to examine it and decided to drive on to a farm house and telephone the Semler boy to come for them. They testified that the red tail light on the left rear corner of the car was lighted at that time, as were also the headlights. Oertwig testified that he could not see whether the headlights on the coupe were lighted, but that he saw no tail light, and that the tail lamp was not lighted. It was broken off by the collision. He also testified that he was not certain whether the coupe was moving or was stopped on the pavement, but he found a jack lying along the edge of the pavement, and a tire pump about the middle of the right lane. Leon Williams gave similar testimony and also spoke of some other tire tools that were picked up. These two witnesses also testified that after they got out of the truck and came back to the coupe Mrs. Semler was bending over her husband crying and saying rather hysterically: “I told him not to do it. I told him not to. I told him not to stop there.” She denied this and so did Miss Bonnett, although the latter testified that after the collision she didn't see either Mr. or Mrs. Semler.
There is testimony from witnesses on each side that after the collision, and as the Semler car stood on the shoulder, it was in gear and the emergency brake was set. There is no evidence that any one did anything to the car until Mr. Derry came out with the wrecker. A road patrolman, two sheriffs and a deputy had been on the ground since shortly after the collision. They were having difficulty getting the car hooked onto the wrecker. Mr. Derry, for the plaintiff, testified: “I don't recall whether the car was in neutral, but I remember one of the boys saying the emergency brake was on. That was at the time my wrecker was right at the rear of the car trying to pull it out. They wanted it to roll down a little bit. It was necessary
[12 N.W.2d 268]
for them to release that brake and it did roll down and I did hook on.”
Plaintiff alleged seven grounds of negligence in her petition, and prayed for judgment against both defendants for the sum of $7,500. Each defendant filed answer denying generally. The court submitted the following grounds of negligence: 1. In failing to have the truck under control. 2. In failing to keep a proper lookout on the road ahead, and failing to discover the automobile of plaintiff's intestate in time to avoid coming into collision with the same. 3. In failing to bring said truck to a stop within the assured clear distance ahead. The verdict and judgment were for $4,229.15.
Appellee in her printed argument refers to and briefly argues her motion to dismiss the appellant's appeal. The motion was submitted to this court and overruled on September 21, 1943, before the submission of the appeal.
I. The first error assigned by the appellants is in the order of the court overruling their motions to continue the trial of the action for the reason that Walter Oertwig, one of the defendants, and the main witness for the defense, was a member of the United States Navy and in service beyond the borders of the United States, and that the cause of action could not properly be presented, nor a defense made, without his personal presence. The September Term of court began on the 28th of that month. Trial notices had been filed for that term by the plaintiff in this action, and also by the plaintiffs in the other two actions against the defendants. The first motion for continuance was filed on October 5, 1942. Attached to it was an affidavit of Oertwig's father-in-law, executed on September 18, 1942, and stating that about ten days previous Oertwig had telephoned to the affiant from San Diego, California, that he was being shipped out for service somewhere in the Pacific Ocean.
The plaintiff filed a written resistance to the motion and a hearing was had and some testimony introduced by plaintiff. There is nothing in the record to show when Judge Miles set aside the judgment for defendants in the first trial. It was shown that the case of Miss Bonnett was set for trial at the May, 1942 Term, and a similar motion for continuance was then sustained. Oertwig had enlisted in the Navy at the time of the first trial, and expected to and did go to the Navy as soon as that trial was over. Plaintiff's resistance alleged that the motion was not filed as provided in Code, § 11446; that there had been no diligence shown in regard to taking the testimony of Oertwig; that there was no statement of facts as distinguished from legal conclusions; that his testimony had been taken and transcribed in the former trial, and “his testimony so given in that case would be admissible in the trial of this case as a deposition just as though it had been regularly taken as such, and that being true, defendants would not be deprived of his testimony.” Counsel for the plaintiff informed the court that “the real defendant is the insurance company.” In overruling the motion the court said: “In this case you have had a trial once of the case, and the party has been examined and his testimony is all a matter of record and can be read to the jury. I don't apprehend, as far as this particular defendant is concerned, that it will amount to very many dollars and cents whether he is here and testifies or not as a witness. Probably somebody else would have to answer for whatever judgment was returned in the case.” (Italics ours.)
On October 14, 1942, the defendants...
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