Wirtanen v. Provin

• Decision Date: 18 June 1980
• Docket Number: No. 63312,63312
• Citation: 293 N.W.2d 252
• Parties: Irving J. WIRTANEN, Administrator of the Estate of Steven J. Wirtanen, Deceased, Appellant, v. Michael PROVIN and David White, d/b/a White Trucking Company, Appellees. David WHITE, d/b/a White Trucking Company, Cross-petitioner, v. Lyle WANDLING, as Administrator of the Estate of Fred Wandling, Appellee.
• Court: Iowa Supreme Court

Page 252

293 N.W.2d 252

Irving J. WIRTANEN, Administrator of the Estate of Steven J. Wirtanen, Deceased, Appellant, v. Michael PROVIN and David White, d/b/a White Trucking Company, Appellees.

David WHITE, d/b/a White Trucking Company, Cross-petitioner, v. Lyle WANDLING, as Administrator of the Estate of Fred Wandling, Appellee.

No. 63312.

Supreme Court of Iowa.

June 18, 1980.

Elwood & Elwood, North English, for appellant.

William Pappas, Mason City, and Garold F. Heslinga, Oskaloosa, for appellees Provin and White.

Robert J. Spayde, H. S. Life and Patrick J. Life, Oskaloosa, for appellee Wandling.

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

McGIVERIN, Justice.

Steven J. Wirtanen was killed in an auto-truck collision. The administrator of his estate, Irving J. Wirtanen, brought a wrongful death action which resulted in a jury verdict and judgment thereon adverse to plaintiff. His appeal involves several problems that arose during and after the trial, including the issue of whether we have jurisdiction of this appeal. We conclude we have jurisdiction and affirm the trial court.

The following issues are presented for our review:

1. Whether we have jurisdiction to entertain this appeal;

2. Whether the trial court correctly overruled plaintiff's objections to testimony of defendants' expert witnesses;

3. Whether a new trial should be granted because an allegedly erroneous written accident report was admitted in evidence and considered by the jury;

4. Whether the jury verdict for defendants was sustained by sufficient evidence; and

5. Whether a new trial should have been granted on the basis of jury misconduct.

The accident occurred on September 16, 1976, on blacktop county road V-66 near Interstate 80 in Iowa County. Steven was a passenger in a Volkswagen car that was being driven in a southerly direction by Fred Wandling, who was also killed in the accident. The Wandling car collided with a truck tractor-trailer, which was being driven by defendant Michael Provin and was owned by defendant David White, d/b/a White Trucking Company. The truck had been traveling north and was slowly turning left into a gasoline station at the time of impact.

At trial the court submitted to the jury plaintiff's negligence action against defendants Provin and White, as well as defendant White's cross-petition for indemnity and contribution against Lyle Wandling, administrator of Fred's estate, for any judgment plaintiff might obtain against White. White's cross-petition alleged recklessness by Fred Wandling in the operation of the car in which plaintiff was riding.

Other facts will be stated later as necessary for consideration of the issues presented.

I. Jurisdiction of this appeal. As a preliminary matter, we must consider whether we have jurisdiction of this appeal.

On December 20, 1978, the jury returned a unanimous verdict adverse to plaintiff. No judgment was entered thereon as contemplated by Iowa R.Civ.P. 223. ¹ Plaintiff filed a motion for new trial on December 27, which was overruled by the court on February 27, 1979. On March 16 plaintiff filed a notice of appeal from the December 20, 1978, jury verdict, the judgment of December 20, and the February 27, 1979, ruling denying his new trial motion.

When this appeal was ready for submission, we noted that no trial court judgment had actually been entered. On January 22, 1980, we entered an order allowing the parties to file statements of reasons why the appeal should not be dismissed as prematurely taken because no final judgment had preceded the ruling on the motion for new trial. Iowa R.App.P. 1(a); Decatur-Moline Corporation v. Blink, 283 N.W.2d 347, 350 (Iowa 1979) ("a new trial motion cannot provide the necessary element of finality to an otherwise interlocutory order or decision.").

Thereafter, at plaintiff's instance on January 25, 1980, a judgment entry in the trial court was filed entering judgment for defendant, dismissing defendant White's cross-petition against Wandling and taxing costs. On the same date plaintiff filed an application for order nunc pro tunc and the trial court entered an ex parte order thereon that stated the court and counsel inadvertently had failed to observe that a judgment had not been entered of record on December 20, 1978, the date the jury rendered its verdict. The court ordered therein that the court's judgment be entered nunc pro tunc by the clerk as of December 20, 1978, and that the judgment "shall have the same force and effect as if entered that date." That additional procedural record was then certified to this court.

Plaintiff, of course, says the appeal should not be dismissed because the trial court's action in entering the nunc pro tunc order corrected the record and provided a final judgment from which appeal was taken. The other parties are not asking that the appeal be dismissed. Neither do they contest the ex parte nunc pro tunc order entered by the court nor claim prejudice thereby. See generally McVay v. Kenneth E. Montz Implement Company, 287 N.W.2d 149 (Iowa 1980) (prejudice claimed by the other party). We believe we have jurisdiction to entertain the appeal.

In McCleeary v. Wirtz, 222 N.W.2d 409, 416 (Iowa 1974), we held that a trial court is not divested of jurisdiction by a premature notice of appeal. Therefore, on January 25, 1980, the trial court had jurisdiction to enter the judgment and nunc pro tunc order under the present circumstances.

The next question is whether the trial court could enter a judgment nunc pro tunc although no judgment had been previously entered. At this point we must recognize there have two lines of Iowa nunc pro tunc cases. One line is illustrated by the following from McVay, 287 N.W.2d at 150-51:

Perhaps we should review briefly what we have said in earlier cases about the proper function of nunc pro tunc orders. Literally nunc pro tunc means "now for then." A nunc pro tunc entry makes the record show now what was actually done then. Its purpose is to make the record show truthfully what judgment was actually rendered . . . ." "It is not for the purpose of correcting judicial thinking, a judicial conclusion or mistake of law. " Thus if a court makes an error of fact or law in arriving at its judgment, the appropriate remedy is not by way of a nunc pro tunc order but by other available procedures such as a motion under rule 179(b), R.Civ.P., or a motion for new trial under rule 244, R.Civ.P. This is apparent from the present statutory authority which limits the nunc pro tunc power of the court "only to correct an evident mistake." § 602.17, The Code (emphasis added).

(Citations omitted.)

However, our problem is that nothing "was actually done then"; that is, no judgment was entered on December 20, 1978. We reaffirm the authorities stated in McVay as relevant to instances when some judgment was previously entered. On the other hand, we believe another line of nunc pro tunc cases applies in this Iowa R.Civ.P. 223 situation where no judgment was timely entered on a jury verdict due to ministerial error or oversight by the court. In State v. Steffens, 282 N.W.2d 120, 122 (Iowa 1979), we quoted with approval the following from 46 Am.Jur.2d Judgments § 201 at 443-44: "The power of the court in this regard is to make the journal entry speak the truth by correcting clerical errors and omissions . . . ." In Kuiken v. Garrett, 243 Iowa 785, 806-07, 51 N.W.2d 149, 161-62 (1952), we approved a trial court nunc pro tunc entry of a judgment under rule 223, nearly one and one-half years after the jury verdict was rendered, which required the judgment to be effective on the verdict date. Similarly, in Wilson v. Corbin, 241 Iowa 226, 229, 40 N.W.2d 472, 474-75 (1950), we set aside our submission when no judgment had been previously entered and remanded the case to allow the district court to enter a proper judgment nunc pro tunc and to show the judgment effective on the date of a directed jury verdict. We said that appeal could then be resubmitted for our consideration. We recently followed the remand procedure of Wilson in In re Marriage of McCreary, 276 N.W.2d 399, 400 (Iowa 1979), for the purpose of having an order entered nunc pro tunc so as to make the appeal timely.

In McCreary, we said "when the only deficiency is lack of a formal order incorporating terms of an otherwise complete ruling from which appeal was incorrectly taken . . ." we have allowed the limited remand procedure. Id. We believe the jury verdict here was an otherwise complete ruling which only lacked a formal judgment entry, a ministerial act under rule 223.

Here the trial court has now entered an appropriate nunc pro tunc order correcting the record making the January 25, 1980, judgment effective on December 20, 1978, when the verdict was rendered. This is the same result as if we had ordered a limited remand as in the Wilson and McCreary cases. We deem such a remand unnecessary under the present record.

We hold the district court had authority to enter the January 25, 1980, nunc pro tunc order making the judgment entry effective on the date of the jury verdict, and accordingly that we have jurisdiction to entertain this appeal.

II. Objections to defendants' expert witness testimony. At trial defendants called two expert witnesses, Myron Lofgren, an accident reconstruction specialist in the Minnesota State Highway Patrol, and George W. Brown, a consultant in accident analysis. Plaintiff contends the court abused its discretion by overruling many of plaintiff's objections to the hypothetical questions asked these experts. On appeal plaintiff does not contend the witnesses were not qualified. Instead plaintiff says the questions assumed matters not in evidence and omitted facts that should have been included. Defendants respond that plaintiff failed to preserve error as to this assignment because the principal objections asserted by plaintiffs were "incompetent,...