Wilson v. Kouri

• Decision Date: 11 June 1963
• Docket Number: No. 50968,50968
• Citation: 255 Iowa 348,122 N.W.2d 300
• Parties: Loia Faye WILSON, Appellant, v. Antone KOURI and James Kouri, Appellees.
• Court: Iowa Supreme Court

Page 300

122 N.W.2d 300

255 Iowa 348

Loia Faye WILSON, Appellant, v. Antone KOURI and James Kouri, Appellees.

No. 50968.

Supreme Court of Iowa.

June 11, 1963.

Davis, Huebner, Johnson, Burt & Fulton, Des Moines, for appellant.

Herrick, Langdon, Sandblom & Belin, Des Moines, for appellees.

PETERSON, Justice.

This is an action for damages by reason of alleged injuries caused in a collision between two automobiles at the junction of highways 6 and 64 east of Des Moines. The trial court submitted the case to the jury. Verdict was rendered for defendants. Plaintiff appeals.

The only errors assigned by appellant are allegations that instructions 9, 16, and 17 were erroneous.

I. The accident happened on October 3, 1959, at the intersection of said two highways.

Plaintiff was riding in a 1957 Dodge station wagon, driven by her husband, Alfred D. Wilson. The defendant, James Kouri, was driving a Chevrolet automobile owned by his father, Antone Kouri.

Mr. Wilson testified he and plaintiff had attended a football game at Iowa City; they stopped on their way home for dinner and proceeded toward Des Moines in a westerly direction on highway 6. As they approached the intersection with highway 64 there were two to four cars ahead of them in the line of traffic going up to the stop sign. Mr. Wilson said he had to slow down with the traffic and that he stopped because of the heavy traffic three times before reaching the stop sign. After the car ahead of him pulled away from the stop sign, he pulled up and stopped. There was a car coming on highway 64 that was flashing its lights and while stopped to let that car pass he was struck from the rear.

Mr. Kouri, the defendant, testified he left home in Des Moines about 8 o'clock that evening to go to a grocery store at East 21st and University Avenue. At Easton and Hubbell Streets he picked up a hitch-hiker and took him to a drive-in, about one-half mile east of the intersection where the accident happened. He drove west on No. 6, and proceeded toward the intersection with No. 64. By this time it was drak. When he came up near the intersection he observed the station wagon, which he later learned was driven by Mr. Wilson. It was stopped at the intersection. Defendant testified Mr. Wilson started to pull away from the stop sign and Mr. Kouri started to pull up to the stop sign. As he did so he turned his head quickly to make sure there was no traffic coming from the northeast. When he turned his head back Mr. Wilson had stopped again at a point partly past the stop sign. The Wilson car was about a half car length ahead of him. He immediately attempted to stop and did get slowed down to about one mile an hour, but even then he collided with the back of the station wagon.

Following the collision, Mr. Kouri told Mr. Wilson there was nothing wrong with his car. Mr. Wilson pointed out one small dent on the left rear of the station wagon, but said he did not think there was anything serious to worry about. They both proceeded on their way.

Mr. Kouri talked with Mr. Wilson over the telephone about a month after the accident and nothing was mentioned by Mr. Wilson about Mrs. Wilson being injured.

Mrs. Wilson testified she felt nauseated during the evening of the accident. When the accident happened she was leaning her head back on the upright part of the seat of the car. The only thing she noticed was that a 'bun' fastened on top of her head, together with a very small hat on top of it were knocked off and fell behind the seat. Mr. Wilson testified his wife did not tell him anything about her nauseated condition until two or three days after the accident. She did not see a doctor until one month after the accident at which time she went to see Dr. John Kelley. She saw him only once and he was not called as a witness. Her attending physician was Dr. Joseph G. Schupp. She saw him fifty-two days after the accident. She also consulted Dr. Walter D. Abbott of Des Moines. Defendants had Mrs. Wilson examined by Dr. T. B. Summers of Des Moines shortly prior to the trial. The principal contention of plaintiff at the trial was that she secured a permanent injury from the collision.

II. Plaintiff's first contention is that the trial court committed reversible error in submitting Instruction No. 16 to the jury.

Appellee's contention in connection with the instruction is that plaintiff failed to take exception to the instruction, on the same basis as the contentions now made before this court, and that, therefore, this assignment of error does not merit our consideration.

In order to arrive at a conclusion as to these respective contentions we will quote the three matters involved. First: What was the Instruction? Second: What was the exception taken to the Instruction before it was submitted to the jury? Third: What are appellant's contentions in this court now?

Instruction No. 16 was as follows: 'Defendants contend that the sole proximate cause of the accident involved herein was the negligence of the driver of the car in which the plaintiff was riding. If you find from the evidence that Alfred Wilson, driver of the car in which the plaintiff was riding, was negligent and that his negligence was the sole proximate cause of the accident and any injuries, if any, of the plaintiff, then the plaintiff cannot recover and your verdict should be in favor of the defendants.'

The exception of plaintiff to the instruction when it was presented by the court to the attorneys prior to being submitted to the jury was: 'The plaintiff excepts to the giving of Instruction No. 16 in its entirety for the reason that there is no competent evidence in this case from which the jury could find that the sole proximate cause of the accident involved herein was the negligence of the driver of the car in which the plaintiff was riding; there is no competent evidence from which the jury could find that Alfred Wilson was negligent in any particular. The evidence affirmatively shows that he was free from negligence and there is no competent evidence from which the jury could find that any conduct on his part was the sole proximate cause of the accident, * * *'.

Appellant now urges: 'Having undertaken to instruct as to an affirmative defense, it was incumbent upon the trial court to correctly instruct the jury that the burden of establishing the affirmative defense rested upon the defendants, and the trial court's failure to properly instruct on the burden of proving the affirmative defense rested on defendants, was error.'

The criterion is whether the exception taken alerted the trial court to the error which the appellant is now urging. Appellant has gone one step beyond the exception taken to the instruction prior to its submission to the jury. The important part of the contention now urged by appellant was not mentioned in the exception. The exception was of no assistance to the trial court as to the matter now argued.

R.C.P. 196, 58 I.C.A., provides in part as follows: '* * * Within such time, all objections to giving or failing to give any instruction must be made in writing or dictated into the record, out of the jury's presence, specifying the matter objected to and on what grounds. No other grounds or objections shall be asserted thereafter, or considered on appeal.'

The rule has been judicially approved in many decisions of this court. We will cite a few. Mongar v. Barnard, 248 Iowa 899, 911, 82 N.W.2d 765 (1957); Cunningham v. Court, 248 Iowa 654, 665, 82 N.W.2d 292 (1957); Soreide v. Vilas & Co., 247 Iowa 1139, 1151, 78 N.W.2d 41 (1956); Stewart v. Hilton, 247 Iowa 988, 994, 77 N.W.2d 637 (1956).

Complete administration of justice in the District Courts, and freedom from error as far as possible in the instructions, are matters of great importance. After the instructions have been prepared by the trial court it is essential that the court receive careful examination of the instructions. When exceptions are made to the instructions it gives the trial court an opportunity to give further attention to their substance. If the court feels there is merit in the exceptions the court has the opportunity to correct such errors before the instructions are submitted to the jury. As a practical situation this occurs in many cases and prevents many errors from creeping into the trial of cases in the District Court, and prevents many unnecessary appeals to this court.

The provisions of R.C.P. 196 are effective as to this assignment of error.

III. Appellant assigns error by reason of the provisions of the last paragraph

of instruction No. 9, which is as follows: 'In this case if either of the parties fail to keep a proper lookout such failure would constitute negligence on his part.'

It was to this paragraph in Instruction 9 that appellant excepted, prior to submission of the instructions to the jury. Her exception was as follows: 'For the reason that there is no competent evidence in the record in this case from which the jury could find that the plaintiff herein failed to keep a proper lookout * * *'.

The basis of appellant's argument before this court is that the instruction was erroneous because it 'imposed the same duty upon the plaintiff, a passenger in the automobile, as to lookout, * * * as was imposed upon the driver of the vehicle which struck the automobile in which she was riding.'

There is no contention now that there is no evidence from which the jury could find plaintiff failed to keep a proper lookout; simply that the instuction erroneously imposed the same duty on plaintiff, a passenger, as was imposed on defendant, driver of second car.

Here again, there was nothing in the exception which alerted the trial court as to a comparison between plaintiff and Kouri as to duites of lookout. Two different and distinct legal propositions are involved in the exception and the present argument.

Again we invoke the provisions of R.C.P. 196, quoted in the previous division. We hold it is...