Twyford v. Weber

• Decision Date: 28 August 1974
• Docket Number: No. 56299,56299
• Citation: 220 N.W.2d 919
• Parties: William TWYFORD, Jr., Appellant, v. Dale WEBER et al., Appellees.
• Court: Iowa Supreme Court

Page 919

220 N.W.2d 919

William TWYFORD, Jr., Appellant, v. Dale WEBER et al., Appellees.

No. 56299.

Supreme Court of Iowa.

Aug. 28, 1974.

Herbert M. Spector, of Spector, Taber & Tappa, Rock Island, Ill., and McDonald & McDonald, Davenport, for appellant.

Lane & Waterman, Davenport, for appellees.

Heard before MOORE, C.J., and MASON, LeGRAND, REES, and UHLENHOPP, JJ.

MASON, Justice.

William Twyford, Jr., brought this law action for damages against Dale Weber, Arno L. Jensen and Medical Associates, a partnership of several doctors with whom Weber and Jensen are associated in the practice of medicine in Clinton, for alleged negligence in treating Twyford's injured hand. Trial resulted in a jury verdict for defendants. Plaintiff's motion for new trial was overruled and he appeals from judmgent based on the adverse verdict contending the trial court erred in excluding slides and photographs of plaintiff's injured hand and giving instruction 4 to the jury.

Twyford injured his hand while working for painting contractor Murray Stewart at the Collis Company Plant in Clinton. The injury occurred about 12:00 noon August 6, 1968, while plaintiff was cleaning a high pressure paint spray gun with Oleum paint thinner. Plaintiff accidentally hit the spray gun trigger and injected about two tablespoons of Oleum into the palm of his left hand just below the longer finger.

Twyford was immediately taken to Medical Associates and examined by Dr. Weber who cleaned and bandaged the wound, applied salve thereon, administered a tetanus shot, prescribed pain pills and advised plaintiff to rest in bed. That evening the pain became so intense plaintiff returned to Medical Associates and was examined by Dr. Jensen. Similar treatment was given. The following day plaintiff was admitted to a hospital and given antibiotic pills and four shots.

After August 10 the condition of the hand became worse. Plaintiff's fingers became blacker, his arm began to puff up and get darker and the pain became worse. August 13 plaintiff was transferred to the University of Iowa Hospital in Iowa City. Upon his arrival a photographer took black and white and color slides of his arm and hand.

At trial plaintiff's exhibits 1--A through 4--A, 8 10 prints made from copies of the color slides taken at the hospital, were initially admitted into evidence. When the photographer testified these color prints were somewhat distorted from the original slides, those exhibits were removed from the jury's consideration and exhibits T--1 through T--4, being the slides from which the pictures were made, were substituted. Plaintiff's exhibits A, B and C, copies of the black and white slides, were likewise admitted.

One hour after arrival at the University Hospital plaintiff underwent surgery to drain the Oleum and determine the extent of tissue damage. Four days later his long finger and ring finger to the second joint were amputated and gangrenous tissue removed.

The same photographer took further slides, (exhibit T), of plaintiff's arm and hand apparently both during and after surgery. Plaintiff's attorneys received copies of these slides, (exhibit W), and made prints from these slides (exhibits 1--A to 21-A).

Before trial defendant filed a motion in limine asking the court to instruct plaintiff, his attorneys and his witnesses not to mention before the jury without first obtaining the court's permission that these slides were taken at the University Hospital. Defendant's motion alleged, inter alia, that the slides '* * * would have no benefit or value to a jury, would cause sickness among the jurors, sympathy for the plaintiff and create passion and prejudice against defendants.'

The trial court ruled none of the slides could be so mentioned but that plaintiff's exhibits 1--A through 4--A could be offered into evidence and introduced provided there was proper foundation, and subject to later objection. As noted above, exhibits T--1 through T--4 were later substituted.

The court further provided in the order that, 'Insofar as the remaining slides (part of Exhibit W) are concerned, it is the order of the Court that in the absence of the jury there may be evidence introduced and preliminary to the offer of said slides which will be at that time passed upon and exceptions taken; and

'This order as now made is excepted to upon the part of both parties or both sides; and it is the understanding of the Court that no reference shall be made without further permission secured upon the part of the attorneys addressed to the Court in the absence of the jury in reference to the fact that extensive slides were taken during the surgery and immediately subsequent thereto.'

I. As indicated, one of the issues presented for review by this appeal is whether the trial court abused its discretion in refusing to admit certain black and white and color photographs and slides of plaintiff's arm and hand which were offered as exhibits for jury consideration. In connection with plaintiff's written argument dealing with this issue he asserts at one point the trial court erred in its ruling on defendants' motion in limine.

A motion in limine has been defined as 'a term used to describe a written motion which is usually made before or after the beginning of a jury trial for a protective order against prejudicial questions and statements.' Burrus v. Silhavy, 293 N.E.2d 794, 796 (Ind.App.1973).

This court has recently discussed the use of motions in limine in State v. Johnson, 183 N.W.2d 194, 197--198 (Iowa 1971); Lewis v. Buena Vista Mutual Insurance Association, 183 N.W.2d 198, 201 (Iowa 1971); State v. Garrett, 183 N.W.2d 652, 654--655 (Iowa 1971); and State v. Hinsey, 200 N.W.2d 810, 817--818 (Iowa 1972). There is also a discussion of this type of motion by Ross H. Sidney, a member of the Iowa Bar, appearing in the Workshop Outline of the 92nd Annual Meeting of the Iowa Bar Assn. 1965, hereinafter referred to as Sidney.

The function of a motion in limine is not only to exclude during the voir dire examination and opening statements, reference to anticipated evidence claimed to be objectionable because incompetent, irrelevant, immaterial or privileged but to also restrict opposing counsel in asking questions or making statements in offering such matters until the admissibility of the questionable evidence can be determined during the course of the trial by presenting to the court in the absence of the jury such evidence by offer and objection. Its objective is to control such matters in advance and thus avoid disclosing to the jury prejudicial material which may compel declaring a mistrial. See State v. Johnson, 183 N.W.2d at 197--198.

It serves the useful purpose of raising and pointing out before trial certain evidentiary rulings the court may be called upon to make during the course of trial. The motion has the effect of advising the court and opposing counsel of the party's position on a particular matter and should effectively remove the problem when the argument is advanced by the offending party that the prejudicial evidence came in by sheer inadvertence.

It is not a ruling on evidence and should not, except on a clear showing, be used to reject evidence. It adds a procedural step to the offer of evidence. This type of motion should be distinguished from other types of pretrial motions or hearings such as the determination of the competency of a witness, the ability of a minor to testify, the admissibility of dying declarations, the determination of the voluntariness of a confession at an independent hearing thereon and a motion to suppress evidence by a party aggrieved by an unlawful search and seizure. In these situations the court's determination of admissibility ordinarily puts an end to the question in the trial court and controls the subsequent course of the action relative to all matters included in the ruling.

Motions in limine may have the effect of precluding the introduction of certain evidence at trial, yet they are not the same as a motion to suppress evidence and the basis of the latter is completely different. Sidney, page A--1.

If a motion in limine is granted the court in its ruling should provide and advise counsel such ruling is without prejudice to the right to offer proof during the course of the trial, in the jury's absence, of those matters covered in the motion and if it then appears in the light of the trial record that the evidence is relevant, material and competent it may then be introduced, subject to opposing counsel's objections, as part of the record of evidence for the jury's consideration.

In other words, such orders, when the motion is sustained, must be so worded as not to preclude the right of the parties affected thereby to make their record in the absence of the jury, on any material evidentiary matter which they feel entitled to produce in support of their case in view of the trial record made at that point.

The procedure outlined in the two preceding paragraphs is substantially that followed in Mead v. Scott, 256 Iowa 1285, 1292--1293, 130 N.W.2d 641, 645 and is suggested as a proper method for handling the situation, Sidney at A--7, since it enables the aggrieved party to present a proper record for review on appeal. State v. Johnson, 183 N.W.2d at 197. In the absence of such a subsequent offer on the part of counsel operating under restriction the record on appeal may be so lacking as to not properly present to this court the setting in which the questionable evidence was claimed to be admissible.

We believe this to be true even though, 'this court has not insisted on a subsequent record where the motion in limine Is granted on hearing which is evidentiary in nature, the court is completely apprised of the factual situation and nothing occurs at trial to change the posture of the parties. * * * (citing authorities).' (Emphasis in the original). State v. Garrett, 183 N.W.2d at 654.

At the same time we recognize there...