Thompson v. Rozeboom

• Decision Date: 20 December 1978
• Docket Number: No. 61117,61117
• Citation: 272 N.W.2d 444
• Parties: Ruby THOMPSON, Individually and as Executrix of the Estate of Scott Thompson, Deceased, Appellee, v. Earl G. ROZEBOOM, Appellant.
• Court: Iowa Supreme Court

Page 444

272 N.W.2d 444

Ruby THOMPSON, Individually and as Executrix of the Estate of Scott Thompson, Deceased, Appellee, v. Earl G. ROZEBOOM, Appellant.

No. 61117.

Supreme Court of Iowa.

Dec. 20, 1978.

Thomas A. Finley of Duncan, Jones, Riley & Finley, Des Moines, for appellant.

Welsh & Sibbernsen, Omaha, Neb., and Spellman, Spellman, Spellman & Spellman, Perry, for appellee.

Considered by REES, P. J., and UHLENHOPP, HARRIS, McGIVERIN and LARSON, JJ.

REES, Justice.

This is an appeal by the defendant Earl G. Rozeboom, a doctor of medicine, from the order of the trial court sustaining plaintiff's motion for a new trial in an action for medical malpractice, after the jury had returned a verdict for the defendant. We find no abuse of discretion on the part of the trial court in sustaining plaintiff's motion for a new trial, and affirm.

This action for wrongful death was instituted in the Madison County District Court by the plaintiff Ruby Thompson in her individual capacity and as executrix of the estate of her deceased husband. Plaintiff alleged the defendant was negligent in diagnosing and treating an injury to her husband, Scott Thompson, and that such negligence was the proximate cause of Thompson's death. The defendant is one of four doctors of medicine in Winterset and Madison County, all of whom are associated in the same clinic.

Thompson, 69 years of age, suffered an abdominal injury in a tractor accident on the evening of May 4, 1975. He was admitted to the Madison County Memorial Hospital in Winterset under the care of the defendant, who diagnosed Thompson's condition as "injury to lower abdomen, exact nature uncertain". Thompson remained in the hospital overnight under the supervision of nurses who were directed to inform the defendant of any change in his condition. The next morning, following a determination that Thompson's condition had worsened, he was transferred to Iowa Methodist Hospital in Des Moines, where he underwent surgery in the afternoon of May 5. His condition was there diagnosed as "subcutaneous injury to abdomen, free perforation mideleum". The surgical procedures at Iowa Methodist Hospital disclosed Thompson was suffering from peritonitis and pyelophlebitis, and he was then transferred on June 2, 1975 to the Mayo Clinic in Rochester, where, following additional surgery, he died on June 24.

Prior to trial, the plaintiff filed a motion for change of venue, supported by affidavits, in which she alleged she could not be afforded a fair trial in Madison County because of the defendant's undue influence within the county, and the probability that jurors selected to try the case would be securing treatment from the defendant in the future. Dr. Rozeboom and his associates constituted the entire medical profession in Madison County. The motion for change of venue was overruled by Judge Frederick, who concluded the grounds asserted in the motion were speculative and that there was no showing in the affidavits of defendant's undue influence, as contended for in the motion.

The motion for change of venue was subsequently renewed by the plaintiff during the jury selection, at the close of the plaintiff's evidence, and prior to the submission of the case to the jury. Each time the motion was renewed, it was overruled by the trial court without elaboration.

During the voir dire of the prospective jurors, 22 of 24 stated they could be fair and impartial. Two prospective jurors were disqualified for cause for reasons other than having any connection with the defendant. Of the remaining 22 prospective jurors, the plaintiff moved to disqualify 17 due to their inability to be impartial because of alleged personal relationships between them and the defendant. The voir dire examination of the 17 potential jurors indicated that either they or members of their families had been treated by Dr. Rozeboom, although several indicated they had sought treatment from him only once. The challenges were resisted on the ground that the jurors had stated in the record they could be fair and impartial. Eleven of the 17 potential jurors who were challenged were eventually selected to serve as trial jurors.

After three hours of deliberation, the jury returned a verdict for the defendant on July 21, 1977. Plaintiff filed a timely motion to vacate the verdict and requested a new trial, asserting the overruling of her motions for change of venue denied her a fair trial. The plaintiff reasserted her claim that the defendant was in a position to exercise undue influence over the members of the jury due to his being a member of the only medical association in Madison County. The motion for new trial, based on the foregoing ground, was resisted by the defendant who contended there was no showing the jurors were prejudiced. The motion for a new trial was sustained by the court, who stated:

"(T)here is a cloud over this case occasioned by the Court's mistake of fact in judging the aggregate competence of a jury made up predominantly of the Defendant's patients or their relatives as it bears on their ability to give the Plaintiffs a fair trial."

From the order sustaining plaintiff's motion for a new trial, the defendant appeals.

In the only issue stated for review, the defendant contends the trial court abused its discretion in granting plaintiff's motion for a new trial when it had previously overruled four motions based on similar grounds during the course of the trial and prior thereto.

I. We have said the trial courts of this state have broad discretion in passing on motions for new trials. Fleener v. Board of Supervisors of Poweshiek County, 246 N.W.2d 335 (Iowa); State v. Dalgliesh, 223 N.W.2d 627 (Iowa). A trial court may grant a new trial when the verdict fails to effectuate substantial justice. Coleman v. Brower Construction Co., 254 Iowa 724, 119 N.W.2d 256, 260. For a trial court to grant a new trial in the interest of justice, some reason therefor must appear in the record. Northrup v. Miles Homes, Inc. of Iowa, 204 N.W.2d 850 (Iowa). Only when the evidence clearly shows an abuse of discretion by the trial court will we interfere with a ruling upon a motion for new trial, Waddell v. Peet's Feeds, Inc., 266 N.W.2d 29 (Iowa); Kaiser v. Stathas, 263 N.W.2d 522 (Iowa); Cf. Thomas Truck and Caster Co. v. Buffalo Caster and Wheel Corp., 210 N.W.2d 532 (Iowa); such rationale being based upon the trial court's better position to evaluate the motion. Smith v. Ullerich, 259 Iowa 797, 145 N.W.2d 1, 7. Additionally, rule 14(f)(3) and (4), Rules of Appellate Procedure, provide:

(3) In ruling upon motions for new trial the trial court has a broad but not unlimited discretion in determining whether the verdict effectuates substantial justice between the parties.

(4) The court is slower to interfere with the grant of a new trial than with its denial.

The above rules are deemed so well established that no authority need be cited to support assertions made thereunder. When the trial court orders a new trial, concluding that substantial justice has not been done, the basis for such ruling need not be reversible error. Powers v. City of Dubuque, 176 N.W.2d 135, 139 (Iowa).

Rule 244(h), Rules of Civil Procedure, provides that a new trial may be granted when, to the prejudice of the moving party, there have been "errors of law occurring in the proceedings, or mistakes of fact by the court". In addition to the grounds stated in rule 244, a trial court may also order a new trial on the ground that the verdict failed to effectuate substantial justice between the parties. Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632 (Iowa).

We must, therefore, examine the record in this case to determine whether the trial court abused its discretion in sustaining plaintiff's motion for a new trial. There does...