Smith v. Pine

Decision Date14 December 1943
Docket Number46360.
Citation12 N.W.2d 236,234 Iowa 256
PartiesSMITH v. PINE et al.
CourtIowa Supreme Court

[Copyrighted Material Omitted]

Edmund D. Morrison, Jr., of Washington, and M. F Hicklin, of Wapello, for appellants.

Baldrige & Bailey, of Washington, for appellee.


The collision occurred February 10, 1042, about 10:30 a. m., on paved primary highway 92 some five miles west of Washington, Iowa. Plaintiff, a farmer, accompanied by his wife, was driving toward Washington, rounding a curve from north to east. Defendant Mrs. Pine, wife of an auto dealer, driving west away from Washington, was rounding this curve from east to north when the cars collided. Both drivers suffered serious permanent injuries and the two cars were badly wrecked. Each driver contends and offered evidence that the collision occurred on his or her right side of the center of the highway. Both plaintiff's petition and defendants' counterclaim were submitted to the jury which returned a verdict for plaintiff for $3,949. Defendants' motion for new trial and exceptions to instructions were overruled and judgment was entered on the verdict. Defendants have appealed.

I. Most of the complaints are against the court's instructions. Defendants requested no instructions. We find that none of the exceptions to instructions present reversible error.

Defendants strenuously challenge Instruction 14, dealing wit the measure of plaintiff's recovery. They say it fails to limit the jury to such damages as were shown by a preponderance of the evidence to have been the direct result of defendants' negligence. In the light of all the instructions, the objection is not well taken.

Instruction 14 states: "*** the burden is upon plaintiff to establish by a preponderance of the evidence the amount of each element of his damages as claimed by him in his petition. If, under the evidence, guided by these instructions, you find for plaintiff, you will then determine from the evidence the amount of his recovery ***." No. 16 tells the jury, "only allow for such injuries as you find to be the proximate result of the negligent act or acts of defendant." Instruction 2 states: "*** before plaintiff can recover he must establish by a preponderance of the evidence *** that the negligence of said defendant, if you so find, was the proximate cause of the injury and damage to plaintiff, if any. ***" Instruction 37 tells the jury they must determine the facts from the evidence alone; that all the applicable law was not contained in any one instruction but that all should be considered together.

We think these instructions, construed as a whole, sufficiently tell the jury, in effect, to allow only such damages as were shown by a preponderance of the evidence to have been proximately caused by defendants' negligence. Angell v. Hutchcroft, 231 Iowa 1057, 3 N.W.2d 147; Jakeway v. Allen, 227 Iowa 1182, 1188, 290 N.W. 507; Winter v. Davis, 217 Iowa 424, 438, 251 N.W. 770; Danner v. Cooper, 215 Iowa 1354, 1366, 246 N.W. 223.

II. It is contended Instruction 14 erroneously submitted to the jury items of damage totaling $11,099, when the petition asked only $10,949. The petition alleges various items of damage, totaling $10,949. This includes one item of $250 for future medical expense which was not submitted to the jury, apparently for lack of support in the evidence. By amendment to the petition plaintiff claimed $400 for four months loss of time but the total amount of the prayer was not enlarged. This $400 item was submitted to the jury with the result that the items of damage submitted totaled $150 more than the amount of the prayer. However, Instruction 15 tells the jury not to allow more than $10,949, the amount claimed in the petition. Instruction 14 carefully limits the jury to the amount claimed for each item of damage. Since the verdict was for $3,949, it is apparent there was no prejudice because the items of damage submitted total $150 more than the amount of the prayer. Danner v. Cooper, 215 Iowa 1354, 1364, 246 N.W. 223; McQuillen v. Meyers, 213 Iowa 1366, 1369, 1370, 241 N.W. 442; Siesseger v. Puth, 211 Iowa 775, 780, 234 N.W. 540.

III. It is urged there was no evidence to warrant submission of the claim for $400 for loss of time. Plaintiff suffered a broken leg and kneecap and one ear was nearly torn off. It was shown that he was incapacitated for more than four months and that his services were worth $100 to $125 per month. This was clearly sufficient to warrant submission of this item of damage.

IV. Instruction 14 authorizes recovery, if the jury so found, for pain and suffering that plaintiff "may have suffered in the past" and also "that he may suffer in the future." This is objected to because the allowance for future pain and suffering was not limited to such damages "as were reasonably certain to be caused by the injury." This expression or its equivalent should have been included. The use of the word "may" was unfortunate. There can be no recovery for future pain and suffering unless reasonably certain to result from the injury. Williams v. Clark County, 143 Iowa 328, 120 N.W. 306; Duncan v. Iowa R. & L. Co., 194 Iowa 469, 479, 187 N.W. 486; 25 C.J.S., Damages, p. 885, § 185, subsec. c.

Instruction 16 states, "the allowance of damage is to compensate the injured party only; and in arriving at your verdict you should not *** resort to speculation or conjecture; and only allow for such injuries as you find to be the proximate result of the negligent act or acts of defendant." As heretofore stated, an earlier part of No. 14 directed the jury to determine from the evidence the amount of plaintiff's recovery.

In view of the cautions governing the award of damages in Instruction 16 and the direction in No. 14 and elsewhere that such award be determined from the evidence, we think the omission of which defendants complain is not reversible error. The evidence leaves no doubt that plaintiff's kneecap was permanently injured and defendants say no claim is made that the size of the verdict resulted from passion or prejudice. Duncan v. Rhomberg, 212 Iowa 389, 402, 236 N.W. 638; Woodworth v. Iowa Cent. Railway Co., 170 Iowa 697, 717, 149 N.W. 522; 25 C.J.S., Damages, § 185, p. 886, section 185c; Annos. 81 A.L.R. 423, 454, 85 A.L.R. 1010, 1028.

V. Instruction 14 authorizes recovery, in the event of a finding for plaintiff, of the fair and reasonable value of plaintiff's car at the time of its destruction, not exceeding $175, the amount claimed in the petition. It is said this permits an excessive recovery for this item. It was shown that plaintiff's car was totally destroyed and was of no value except for junk, outside of three tires that plaintiff salvaged. Plaintiff testified the car "was worth about $175 before the collision and about 75 cents afterwards." A garage man testified for plaintiff that the car was worth $375 to $400 before the collision and "not over $40 to $50" after the collision, including the tires. This last testimony is the basis of defendants' complaint against this portion of the instruction.

We are not disposed to reverse the case nor to require a remittitur of $50 because of this complaint. The total permissible recovery for this item was well within what was allowable under the evidence, even if the court had instructed in accord with defendants' contention that the damages should be reduced by the salvage value. The measure of recovery for the total destruction of an automobile is its reasonable market value immediately prior thereto. Langham v. Chicago R. I. & P. R. Co., 201 Iowa 897, 901, 208 N.W. 356; Bush v. Chicago R. I. & P. R. Co., 216 Iowa 788, 795, 247 N.W. 645. The question of allowance for salvage of an automobile that has been totally wrecked seems never to have been considered by us. We have considered the allowance of salvage following the wrongful destruction of animals in Miller v. Economy Co., 228 Iowa 626, 640, 293 N.W. 4.

VI. It is contended, since the court did not submit the item of $250 for future medical expense, that Instruction 15 should have limited total recovery to $10,699-$250 less than the amount of the prayer. In view of the size of the verdict, defendants suffered no prejudice in this respect. See cases cited in division II.

VII. Instruction 1, a summary of the submitted issues, does not state in so many words that plaintiff alleged his freedom from contributory negligence. It does state, however, that plaintiff claimed he was operating his car in a careful and prudent manner on his right side of the highway. It is contended this had the effect of eliminating the issue of plaintiff's freedom from contributory negligence. Defendants did not raise this question in the court below by exceptions to instructions and are not entitled to have it considered here. Section 11495, Code 1939; Cody v. Toller Drug Co., Iowa, 5 N.W.2d 824, 827, and cases cited. Nevertheless, the contention lacks substantial merit. The statement in Instruction 1 sufficiently indicates plaintiff's alleged freedom from contributory negligence. At the end of this instruction the court states, "Such are the issues between the parties, as to which you are hereinafter more fully instructed." The remaining instructions fully cover the matter of contributory negligence. Becvar v. Batesole, 218 Iowa 858, 860, 256 N.W. 297; Stokes v. Sac City, 162 Iowa 514, 522, 144 N.W. 639; Roth v. Buettell Bros. Co., 142 Iowa 212, 218, 119 N.W. 166.

VIII. Defendants' complaint against Instructions 2 and 3 is that they do not place the burden of proof upon plaintiff. It is true they do not so state in those words. However, Instruction 2 does say that before plaintiff can recover he must establish by a preponderance of the evidence the negligence of ...

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