Turner v. Hansen

Decision Date06 March 1956
Docket NumberNo. 48887,48887
PartiesDeWayne Delmar TURNER, by his next friend and mother, Betty Turner, Appellees, v. Harry HANSEN, Appellant.
CourtIowa Supreme Court

R. Lee Black, and Connolly, O'Malley & McNutt, Des Moines, for appellant.

Theodore Duffield, and James A. Lorentzen, Des Moines, for appellees.

PETERSON, Justice.

Plaintiff is a boy two and one half years old. This is an action by his next friend and mother, Betty Turner, against the landlord of the family. Plaintiff alleges that by reason of a defectively fastened guard rail on the side of a stairway leading to the basement he fell a distance of nine feet to a cement floor, and suffered bruises and a permanent injury in the form of a scar over his eye. The jury rendered verdict for plaintiff in the amount of $2,000. Defendant appeals.

Betty Turner was a tenant of defendant at No. 703 7th Street, Des Moines, Iowa. She had lived in an apartment in said property for four months before the accident. On July 6, 1954, Mrs. Turner was in the basement of the apartment house taking care of the family washing. She had her three children with her and when she went up to the yard to hang out clothes, DeWayne, the plaintiff, did not come back down into the basement with her. She went out to find him, and found him lying on his stomach at the bottom of the stairway. He was crying. She testified that a 2 X 4, which had been a guard rail at the top of the stairway, was lying on the steps behind him. He was taken to the hospital and his injuries consisted of some scratches and bruises and what she called a 'big hole' in his head between the hair line and his eye brow. He was bleeding profusely. He recovered rapidly as to all bruises, except the head injury left a very noticeable scar.

The testimony shows that the 2 X 4 which Mrs. Turner states she found at the bottom of the stairway had been used as a temporary guard rail at the top of the stairway. A plumber testified that a permanent tube was to be placed as a guard rail, but he had not been able to make the repair as yet, and in the meantime this 2 X 4 had been wired to the uprights about twenty-two inches above the base which surrounded the top of the stairway.

There was serious conflict in the evidence as to whether or not the 2 X 4 had fallen to the floor of the stairway. The decision as to the facts was for the jury. The jury decided in favor of plaintiff.

Defendant filed an amendment to his motion for new trial, alleging misconduct by the jury, and in support of the amendment placed one of the jurors on the witness stand. This juror testified that while the jury was deliberating, one of the jurors brought into the jury room a piece of No. 9 wire about a foot long. This was discussed and an attempt was made to twist it around the 2 X 4. The 2 X 4 had been placed in evidence by defendant.

In this appeal defendant raises three questions: First; that the bringing of the piece of wire into the jury room by a juror, and the discussion concerning same, was prejudicial misconduct.

Second; that the verdict was excessive, and the result of passion and prejudice.

Third; that plaintiff failed as a matter of law to prove that plaintiff's injury was the proximate result of defendant's negligence.

I. It was irregular for the juryman to bring the wire into the jury room. The juror who brought in the wire was not placed on the witness stand. Another juror testified concerning the matter. There is a definite thread of pronouncement running through the cases where misconduct of jury is charged, as to whether the actions or statements were prejudicial to the party against whom the case was decided. Fagen Elevator v. Pfiester, 244 Iowa 633, 56 N.W.2d 577; Conway v. Alexander, 200 Iowa 705, 205 N.W. 351; Keller v. Dodds, 224 Iowa 935, 277 N.W. 467; 93 A.L.R. 1451.

39 Am.Jur., New Trial, Section 70, page 85, states as follows:

'However, it is well established that not every instance of misconduct in a juror will require a new trial. The general principle underlying the cases is that the misconduct must be such as to affect the impartiality of the jury or disqualify them from exercising the powers of reason and judgment. A new trial will not be granted for misconduct of the jury if no substantial harm was done thereby to the party seeking a new trial, even though the misconduct is such as to merit rebuke from the trial court if brought to its notice. The rule seems to be that however improper such conduct may have been, if it does not appear that it was occasioned by the prevailing party or by any one in his behalf, and there is nothing to indicate any improper bias upon the juror's mind, and the court cannot see that it either had, or might have had, an effect unfavorable to the party moving for a new trial, the verdict ought not to be set aside. Trivial acts of misconduct on the part of a juror during the course of a trial does not require that the verdict be set aside. The misconduct must be such as to reasonably indicate that a fair and impartial trial was not had, or to render it reasonably doubtful whether the verdict was legitimately procured.'

In Keller v. Dodds, supra, a juror had informed the other jurors that it was compulsory under Iowa law for a trucker to carry liability insurance. The court held that this was not prejudicial misconduct because it is common knowledge the statute requires all truck operators to carry such insurance, and every juror is presumed to know the law.

This decision was referred to in Fagen Elevator v. Pfiester, supra. In this case the juror had brought into the jury room a copy of Iowa Drivers' Guide and this was urged as misconduct. The court stated [244 Iowa 633, 56 N.W.2d 582]:

'We think our decision in Keller v. Dodds, supra, is applicable here. The jurors are presumed to have known any provisions of law which were read from The Iowa Drivers' Guide and discussed by them. Such reading and discussion, although of course not to be commended, seems less likely to have influenced the verdict than what was said and discussed in Keller v. Dodds.'

Keller v. Dodds, supra, is cited with approval in the following cases:

Hoffman v. Jones, 229 Iowa 333, 294 N.W. 588; State v. Billberg, 229 Iowa 1208, 1222, 296 N.W. 396, 404; Remer v. Takin Bros., 230 Iowa 290, 296, 297 N.W. 297, 299. See also 66 C.J.S., New Trial, § 58b(3), page 180.

In considering the facts in this case, we conclude that the matter of the wire being present in the jury room was not prejudicial to defendant. The fact question before the jury was whether or not the temporary 2 X 4 guard rail had fallen down with the child to the bottom of the stairway. The jury by its verdict held it had. Under these conditions, the type of wire with which the guard rail was fastened, and whether or not the wire in the jury room could be bent around the 2 X 4, were immaterial. There was no conflict in the evidence on the question of the guard rail being a 2 X 4 fastened to the uprights with wire. The trial court analyzed the situation clearly in his ruling on the motion for new trial, when he stated:

'Whether the wire in the jury room could be bent could not have meant that the wire on the guard rail was not bent, as all the evidence in the case is that it was so bent in that the guard rail was wired to the uprights. Moreover, whether the board before the jury was actually the one in place as a guard rail, would not be so important, as there was no question as to any weakness inherent in the board itself. It was rather a question as to how the 2 X 4 was wired to the uprights.'

It is well established that the trial court has wide discretion in connection with a case of this type, and his decision is entitled to substantial weight and consideration. In re Estate of Murray, 238 Iowa 112, 26 N.W.2d 58, 63.

The Murray case is in reverse as to parties, but the rule is the same. Unless the discretion of the court is abused his decision as to misconduct of the jury should not be reversed. In the Murray case this court stated:

'However, we are not prepared to hold it was a clear abuse of discretion for the trial court to conclude the statements constituted prejudicial misconduct on the part of the juror who made them.'

II. Defendant urges that the verdict was excessive, and the result of passion and prejudice. It is true that the hospital and doctor bills were not large. It is also true that with the exception of the scare the little child recovered quickly. However, it is undisputed that it is a very noticable and permanent...

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