White v. Walstrom, 50773

Decision Date11 December 1962
Docket NumberNo. 50773,50773
Citation118 N.W.2d 578,254 Iowa 646
PartiesDarlene WHITE, Appellee, v. Floyd WALSTROM, Appellant.
CourtIowa Supreme Court

John H. Mitchell, Mitchell, Mitchell & Murray, Fort Dodge, for appellant.

Smith & Hanson, Emmetsburg, for appellee.

PETERSON, Justice.

This is an automobile collision action. It occurred on August 16th, 1958, on highway No. 5, west of Fort Dodge. Plaintiff was driving a 1955 Ford and defendant a 1952 Plymouth. Plaintiff is a farm housewife, 25 years of age.

The scene of the collision was in a 45 mile per hour speed zone. It happened on a sunny day. The pavement was straight and completely dry. Both cars involved were in good operating condition. Highway 5 runs east and west.

The collision occurred near the Porter Feed Company plant. The plant was located on the south side of the highway with driveways running north and south on both the east and west side of the building. The two driveways were about 200 feet apart. There were some changes made between the date of the collision and the date of the trial and there is conflict in the evidence as to the distance between the two driveways on the date of the collision.

When plaintiff's car was nearly opposite the Porter Feed Company plant there was the following procession of cars and trucks: a Porter Feed Company truck as the first vehicle; two automobiles moving back of the truck; plaintiff's car; defendant's car back of plaintiff's car approximately 50 feet; a green truck about 50 feet back of defendant's car. These cars were moving west at the rate of about 40 miles per hour. When the Porter truck reached the driveway north of the plant it slowed up and turned to the left, crossed the highway and proceeded into the west plant driveway. When the truck slowed up, the two cars in front of plaintiff's car and plaintiff all slowed up, cutting their speed to about 5 miles per hour. Plaintiff testified when she saw the truck turning to the left she put her foot on the brake and started the red light flashing at the rear of her car. Defendant testified he saw the red light.

Defendant put on his brakes, but he was unable to stop in time, and struck plaintiff's car a hard blow in the rear. He testified he thought her car was stopped.

The collision jolted Mrs. White's head and it snapped back and forth and caused injuries in the back of her head, neck, and upper spine. There was some damage to both cars, but it was not extensive.

Plaintiff was injured to the extent that it became necessary for her to have surgery on the cervical vertebra and later she had to have surgery to remove a keloid scar on her neck. Her injury was partially permanent.

The case was reached for trial in September, 1961, and was submitted to the jury. The jury returned a verdict for defendant.

I. Plaintiff filed motion for new trial. December 21st, 1961, the trial court sustained the motion. It was sustained on two acceptable grounds. The trial court listed four reasons for granting the new trial. We recognize only two as a basis for the order sustaining the motion. The other two alleged grounds are not persuasive. The two grounds stated by the court on which we will sustain its action are: First. The court stated it committed error in failing to admit into evidence the discovery deposition of defendant, known as Exhibit 'K'. Second. In considering the complete record, the court decided, in the interest of justice plaintiff was entitled to a new trial.

II. A trial court has wide discretion in granting a new trial. We will only interfere when that discretion has been abused.

We could cite dozens of cases from this jurisdiction supporting the principle. We will only cite a few recent cases. Haase v. Hub-Co Credit Union, Iowa, 115 N.W.2d 880; In re Willesen's Estate, 251 Iowa 1363, 105 N.W.2d 640; Harden v. Illinois Central Railroad Co., Iowa, 112 N.W.2d 324; Webster v. City of Colfax, 250 Iowa 181, 93 N.W.2d 91; Holmes v. Gross, 250 Iowa 238, 93 N.W.2d 714; Larimer v. Platte, 243 Iowa 1167, 53 N.W.2d 262; Steensland v. Iowa-Illinois Gas & Electric Co., 242 Iowa 534, 47 N.W.2d 162; Henrich v. Oppedal, 248 Iowa 509, 81 N.W.2d 429; Wilson v. Iowa State Highway Commission, 249 Iowa 994, 90 N.W.2d 161.

The principle has been stated in many cases under various wordings and expressions. We quote a few.

In Steensland v. Iowa-Illinois Gas & Electric Co., supra, we said: 'We have repeatedly pointed out the wide discretion the trial court has in granting a new trial.'

In Henrich v. Oppedal, supra, the court said: 'The trial court has wide discretion in ruling on motion for a new trial. We interfere with reluctance, and only where it appears the discretion has been abused.'

In Haase v. Hub-Co Credit Union, supra, we said: 'We are also faced with a third line of cases which hold that the granting or refusal to grant a new trial rests in the sound discretion of the trial court and only where it appears there has been an abuse of such discretion will this court interfere.'

In Larimer v. Platte, supra, the court said: 'Defendant Platte invokes the familiar doctrine that a trial judge has a good deal of discretion in granting or refusing a new trial, and we will not interfere unless it is reasonably clear such discretion was abused.'

In Holmes v. Gross, supra, we said: 'We have held in many cases that the trial court has a wide discretion in connection with the granting of a new trial.'

III. Appellant contends under the facts and law of the instant case the trial court's discretion was abused.

A specific contention was that the motion was not sustained on any ground listed in R.C.P. 244, 58 I.C.A.

The trial court in substance adhered to two of the grounds set out in the Rule. (Paragraphs a and h).

One ground on which the trial court granted a new trial is covered by separate reference to and ruling upon it. Another ground is that the court granted a new trial 'in the interest of justice.' This is a common law ground and the power to grant a new trial thereunder is based on the inherent powers of the court.

IV. The court's first basis for a new trial was that the court erred in ruling on admissibility of evidence. The court specifically referred to its error in failing to rule properly as to the admission of defendant's deposition marked Exhibit 'K'.

Rule 128, Rules of Civil Procedure, provides: 'Effect of admission. Any admission made by a party pursuant to such request is for the purpose of the pending action only and neither constitutes an admission by him for any other purpose nor may be used against him in any other proceeding.' There was some variance between defendant's testimony in the discovery deposition and his testimony on the trial, concerning which plaintiff tried unsuccessfully to inquire. Doubtless this was the matter to which the Court referred.

Rule 144, Rules of Civil Procedure, in pertinent part, provides:

'Use of Depositions. Any part of a deposition, so far as admissible under the rules of evidence, may be used upon the trial or at an interlocutory hearing or upon the hearing of a motion in the same action against any party who appeared when it was taken, or stipulated therefor, or had due notice thereof, either: * * *

'(b) For any purpose if, when it was taken, deponent was a party adverse to the offeror, or was an officer, partner or managing agent of any adverse party which is not a natural person; * * *.'

Under the above rule, unless we intend to take some additional requirement on it, plaintiff may put defendant's deposition in evidence as part of the plaintiff's case, so far as the deposition is admissible and relevant. In fact plaintiff can make his whole case on defendant's deposition if he so desires. He could always prove his case by statements of defendant made out of court or put the defendant on as his own witness. It is no longer necessary to make defendant your own witness. Rule 145(b), Rules of Civil Procedure. This is one of the rights extended under the discovery depositions. Some districts now do this freely, others apparently do not. This right should be made clear. Our case of Robinson v. Fort Dodge Limestone Co., 252 Iowa 270, 106 N.W.2d 579, 583, did not adequately do this. It could have been made clear. In that case the defendant wished to use the deposition to impeach plaintiff and to show his theory of...

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13 cases
  • Thornberry v. State Bd. of Regents
    • United States
    • United States State Supreme Court of Iowa
    • April 9, 1971
    ...fails to reveal any showing by defendant which affirmatively discloses the instant error was not prejudicial. See White v. Walstrom, 254 Iowa 646, 651, 118 N.W.2d 578; Steensland v. Iowa-Illinois Gas & Elec. Co., Under these circumstances there is no escape from the conclusion that the deni......
  • Allen v. Lindeman
    • United States
    • United States State Supreme Court of Iowa
    • February 7, 1967
    ...not only to allow the adversaries to gain knowledge in preparation but also to aid in development of proof. In White v. Walstrom, 254 Iowa 646, 650, 651, 118 N.W.2d 578, 581, we 'Under the above rule, (#144, Use of Depositions), unless we intend to tack some additional requirement on it, pl......
  • Estate of Long v. Broadlawns Med. Center
    • United States
    • United States State Supreme Court of Iowa
    • December 18, 2002
    ...justice" and a party has not received a fair trial. Wilson v. IBP, Inc., 558 N.W.2d 132, 144 (Iowa 1996); White v. Walstrom, 254 Iowa 646, 651-52, 118 N.W.2d 578, 582 (1962). Our review is for an abuse of discretion. Wilson, 558 N.W.2d at We have previously observed, "the first requirement ......
  • Martin v. Cafer
    • United States
    • United States State Supreme Court of Iowa
    • November 16, 1965
    ...discovery depositions taken pursuant to rule 144(b), Rules of Civil Procedure. Defendant now concedes this was error, White v. Walstrom, 254 Iowa 646, 650, 118 N.W.2d 578, but argues it was not prejudicial as the evidence contained in the deposition coupled with other evidence in the record......
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