Starke v. Horak

• Decision Date: 21 December 1977
• Docket Number: No. 59189,59189
• Citation: 260 N.W.2d 406
• Parties: Dennis R. STARKE and Carole J. Starke, Appellees, v. Mary Rose HORAK, Appellant.
• Court: Iowa Supreme Court

Page 406

260 N.W.2d 406

Dennis R. STARKE and Carole J. Starke, Appellees, v. Mary Rose HORAK, Appellant.

No. 59189.

Supreme Court of Iowa.

Dec. 21, 1977.

Pickens & Barnes and Ted V. Ruffin, Cedar Rapids, for appellant.

Dull, Keith & Beaver, Ottumwa, for appellees.

Heard by MOORE, C. J., and LeGRAND, REES, UHLENHOPP and McCORMICK, JJ.

UHLENHOPP, Justice.

This appeal involves three problems in a negligence action involving two personal injury claims arising out of a rear-end automobile collision. At the heart of the appeal lies the contention by defendant Mary Rose Horak that the jury verdicts of $80,000 and $100,000 respectively for plaintiffs Dennis R. and Carole J. Starke are excessive. Horak states in her brief, "It is submitted, by any fair and disinterested examination of the record in this case, that these verdicts are each blatantly excessive and a substantial remittitur should be ordered by this court . . .. A verdict in the amount of $50,000.00 for each plaintiff would amply compensate these plaintiffs for what they have gone through in the past and what the future holds in store for them."

I. The first problem arises out of a motion to dismiss the appeal. Horak carried liability insurance with limits of $50,000 per person and $100,000 per accident. Prior to litigation, Horak's insurer made advance payments to Starkes of $2742.07. After the verdicts, Horak filed a motion for new trial and with it she tendered $98,233.58 to Starkes, computed as follows: $100,000 (policy limits) plus $100.65 (accrued court costs) and $875 (interest on $180,000 from verdict to tender) minus $2742.07 (advanced). The tender was upon condition that Starkes accept the payment in full. Starkes refused to do so. The trial court overruled the new-trial motion.

Horak then amended the tender deducting the court costs and withdrawing the condition of full payment, but adding the following statement: "This tender of payment as originally made, and as made at this time, is without waiver of, or estoppel against, the right to file an appeal to the Iowa Supreme Court to appeal the interest of the Defendant insured Mary Rose Horak as the Defendant intends to do." Starkes took the payment ($98,132.93), and Horak appealed.

Starkes moved in this court to dismiss the appeal because of the payment on the judgments. We ordered the motion submitted with the appeal.

Ordinarily voluntary compliance with a judgment by a party requires dismissal of his appeal. Credit Industrial Co. v. Bendixen, 255 Iowa 1020, 125 N.W.2d 262. But this court does not have a wooden attitude about dismissal and we have held that payment of costs does not waive appeal. Vermeer v. Sneller, 190 N.W.2d 389 (Iowa). Subsequent to Vermeer we held, in a case close in principle to the present one, that payment of half of fines which were levied did not preclude review. Sound Storm Enterprises, Inc. v. Keefe, Judge, 209 N.W.2d 560, 565 (Iowa) ("This does not constitute review-precluding satisfaction of judgment."). Thereafter we held that acceptance as distinguished from payment of an amount admittedly due would not waive appeal. In re Marriage of Abild, 243 N.W.2d 541 (Iowa). More recently we expanded the rule that involuntary payment does not waive appeal and stated, "A further reason for rejecting defendants' argument is that in recent years we have retreated from the severe appellate waiver doctrine which they espouse." Millsap v. Cedar Rapids Civil Service Comm'n, 249 N.W.2d 679, 683 (Iowa).

Horak emphasizes two factors here: the judgment was not paid in full, and she expressly reserved the right to appeal. Several courts have held that part payment, although voluntary, does not waive the right to appeal. Markley v. Chicago, 167 Ill. 626, 48 N.E. 1056; Hochfelder v. Russell, 169 La. 866, 126 So. 219; Philips v. Frank, 137 So.2d 69 (La.App.); Maddox v. District Supply, Inc., 222 Md. 31, 158 A.2d 650, cert. den. 364 U.S. 872, 81 S.Ct. 114, 5 L.Ed.2d 93, reh. den. 364 U.S. 917, 81 S.Ct. 270, 5 L.Ed.2d 230; Alban v. Evans, 2 Ohio Dec.Rep. 298, 2 W.L.M. 325; Commonwealth v. Benton Twp. School Dist., 277 Pa. 13, 120 A. 661. See 4 Am.Jur.2d Appeal & Error § 260 at 757; 5 C.J.S. Appeal & Error § 1354(6) at 426. At least one court holds that reservation of the right to appeal at the time payment is made negates waiver of appeal. First National Bank of Jefferson Parish v. Louisiana Purchase Corp., 328 So.2d 727 (La.App.); Gibbs v. Tourres, 50 So.2d 652 (La.App.). See also Perry v. Woodbury, 44 N.Y.St.Rep. 287, 17 N.Y.S. 530.

We need not now decide whether partial payment or reservation of appeal rights, standing alone, avoids waiver of the right to appeal. We have both factors here, and we hold that they preclude waiver. Apart from those factors, policy considerations favor our conclusion. The appeal has pended for a period of nearly two years. By virtue of the payment in the trial court, the injured Starkes have had approximately $100,000 during that period. We think we should not foster a rule which would discourage early reparation of injured parties. See Ferris v. Anderson, 255 N.W.2d 135 (Iowa). Since Horak suggests a remittitur to the amount she paid, we have no occasion to decide at this time whether she would be restricted in her appeal to contesting the unpaid amount of the judgment.

We thus overrule the motion to dismiss.

II. One of Horak's two contentions on the merits of the appeal is that the trial court erroneously failed to submit forms of verdict which would allow the jury to find for Horak. At the bar her counsel expressed lack of confidence in this contention and our investigation supports his misgiving. We nonetheless consider the contention.

The trial court was in the following unusual position. At the commencement of trial defendant Horak's attorney announced, after referring to another matter not involved now, "I'll advise the Court, secondly, and apart from the record I've just made and I've already told Mr. Keith (Starkes' attorney) and told the Judge that defendant is admitting liability in this case, and I'm doing it now for the record." By the close of the evidence the proof of damage was before the court and jury, showing severe whiplash injuries, substantial general damages, and out-of-pocket expenses to that time of $4431.09 for Mr. Starke and $4,997.19 for his wife.

The case involved two major issues, liability and damages. Horak judicially admitted liability. Damage, of course, had to exist or Starkes had no causes of action. Wolfswinkel v. Gesink, 180 N.W.2d 452, 456 (Iowa) ("Generally, the wrong or negligence of the party charged gives in itself no right of action to anyone."); Prosser, Torts, § 30 at 143 (4th Ed.) ("Since the action for negligence developed chiefly out of the old form of action on the case, it retained the rule of that action, that proof of damage was an essential part of the plaintiff...