Wong v. Waterloo Community School Dist.

• Decision Date: 17 September 1975
• Docket Number: No. 56012,56012
• Citation: 232 N.W.2d 865
• Parties: Chuck G. WONG, Administrator of the Estate of Peter Wong, and Chuck G. Wong, Individually, Appellant, v. WATERLOO COMMUNITY SCHOOL DISTRICT, Appellee.
• Court: Iowa Supreme Court

Page 865

232 N.W.2d 865

Chuck G. WONG, Administrator of the Estate of Peter Wong, and Chuck G. Wong, Individually, Appellant, v. WATERLOO COMMUNITY SCHOOL DISTRICT, Appellee.

No. 56012.

Supreme Court of Iowa.

Sept. 17, 1975.

Walter W. Rothchild and Frederick G. White, Waterloo, for appellant.

George Lindeman, Waterloo, for appellee.

Heard before MOORE, C.J., and LeGRAND, REES, REYNOLDSON and HARRIS, JJ.

LeGRAND, Justice.

This is an action brought by plaintiff as administrator of the estate of his minor son, Peter Wong, asking damages for the child's wrongful death by drowning. Plaintiff also sought to recover for his own individual loss of services occasioned by this tragic accident. The jury found for defendant, disallowing both the administrator's claim and the claim of the parent individually. He appeals, and we affirm the trial court.

We refer throughout this opinion to the plaintiff in his capacity as administrator of his son's estate. However, what we say applies equally to his own claim.

On July 17, 1970, Peter Wong, 11 years old, was drowned while participating in a swimming class conducted under the auspices of the Waterloo Community School District. The boy, a student at Longfellow School in Waterloo, enrolled in a summer school program which included a series of six swimming periods held at McKinstry Junior High School in that city. Defendant school district had full responsibility for this course, although it was funded under a grant from the federal government. The swimming classes were supervised by employees of the defendant, including both classroom teachers and lifeguards.

The evidence shows that Peter attended all six of the swimming classes. His death occurred during the last session. On two occasions he had not suited up but had remained outside the pool, probably because of his fear of water.

The pool is 60 feet long and 20 feet wide. At the time of the drowning, there were approximately 17 youngsters in the pool. They ranged in age from 9 to 12 years. Most of them, including Peter, were unable to swim.

The class was under the supervision of Roger Tropf, a school teacher who was not certified as a swimming instructor or as a lifeguard. In addition to Mr. Tropf, others exercising supervisory authority over the class were Jack Hilton, a teacher but not a certified lifeguard; Emily Ott, who held a junior lifesaving certificate; Debbie Silkwood, who held a safety instructor's certificate; Susan Evely, a classroom teacher who remained outside the pool and took no part in the swimming supervision; Carol Hanson, a 15-year-old teacher's aide, who held a junior lifesaving certificate; and Susan Rowe, whose status is not shown.

The Wong boy was last seen alive in the shallow end of the pool at approximately 10:40 A.M. Sometime later his body was discovered in the deep end of the pool. Artificial respiration was attempted, both by those present and, later, by the Waterloo Fire Department inhalator squad. All efforts to revive the boy failed.

No one saw Peter go to the deep end of the pool. There was no explanation as to how or when he left the shallow end nor as to the circumstances under which he met his death.

Plaintiff's action was pled both upon allegations of specific negligence and, by separate count, as a Res ipsa loquitur case. Prior to trial, the Res ipsa loquitur court was stricken on defendant's motion. That ruling raises the most serious challenge to the ultimate result.

In all, plaintiff presents the following six issues as grounds for reversing the judgment: (1) error in dismissing the Res ipsa loquitur count; (2) error in rejecting proffered rebuttal testimony; (3) error in refusing to instruct the jury on the effect of evidence concerning custom and usage; (4) error in refusing to instruct the jury that defendant owed plaintiff a high degree of care; (5) error in refusing to submit several pleaded specifications of negligence to the jury; and (6) error in refusing to permit plaintiff to examine defendant's employees as adverse witnesses under § 624.1, The Code.

I. We consider first the two specifications regarding instructions. One challenges the refusal of the trial court to give a requested instruction on custom and usage and the other the refusal of the court to instruct as requested concerning standard of care.

Under the record made, there is nothing before us for review as to these matters. The court's failure to give a requested instruction saves no error in the absence of specific objection to such failure. Rule 196, Rules of Civil Procedure; State v. Overmann, 220 N.W.2d 914, 918 (Iowa 1974); State v. Jensen, 216 N.W.2d 369, 375 (Iowa 1974); Cole v. Laucamp, 213 N.W.2d 532, 534--535 (Iowa 1973).

The record discloses only plaintiff's request for the instructions. No objection was lodged to the court's refusal to give them. Accordingly the error, if any, is waived.

II. We next consider plaintiff's claim he was entitled to examine defendant's employees as adverse witnesses under § 624.1, The Code. We set out the statute in its entirety:

'All issues of fact in ordinary actions shall be tried upon oral evidence taken in open court, except that depositions may be used as provided by law.

'A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief.' (Emphasis added)

Those whom plaintiff wanted to call as adverse witnesses were employees of defendant school district. Although they did not come within the literal terms of the statute as officers, directors, or managing agents, plaintiff nevertheless insists he is entitled to call them under § 624.1. The trial court ruled otherwise and we agree. The statute clearly specifies those who are adverse witnesses. If we were to hold for plaintiff on this issue, we would necessarily amend the statute by adding another class of witness the legislature did not include.

The statute does not leave plaintiff without any help, however. As the trial court pointedly stated, the section permits a party to interrogate any unwilling or hostile witness by leading questions. The trial court has wide discretion in deciding when, and the extent to which, leading questions may be employed. Giltner v. Stark, 219 N.W.2d 700, 713 (Iowa 1974); State v. Bradford, 175 N.W.2d 381, 383 (Iowa 1970).

At no time did plaintiff seek to invoke this part of § 624.1, and indeed we find no evidence that any witness was either unwilling or hostile.

Plaintiff's position is without merit.

III. Plaintiff next urges us to reverse because he was not allowed to call two of defendant's witnesses, Kent Alexander and John Foenes, for further examination to set the stage for their impeachment. These men had previously testified for defendant as experts on swimming pool safety. In response to hypothetical questions, they had expressed the opinion it was unnecessary to have a lifeguard or attendant stationed outside the pool under the circumstances here present.

During the trial, plaintiff located two witnesses he now says would have testified to previous conversations with these experts wherein each had expressed a contrary opinion. If this were borne out by the record, it would have been error to exclude such evidence. It would have been important rebuttal testimony.

However, the claim now made is quite different from that asserted during trial. While plaintiff's offer of proof is far from satisfactory, we nevertheless consider this matter on its merits because the colloquy between court and counsel made a formal offer unnecessary. Kramer v. F. W. Woolworth Co., 255 Iowa 633, 123 N.W.2d 572, 575 (1963); Sandon v. John Hancock Mut. Life Ins. Co., 245 Iowa 390, 394--395, 62 N.W.2d 247, 250 (1954).

Plaintiff has set out part, but not all, of this colloquy in his brief. The omitted portion was most significant in the trial court's ruling. Although plaintiff now insists he wanted to prove the experts had at some earlier time expressed an opinion contrary to their trial testimony, the rejected evidence at best would have shown a change of opinion After this accident. This is shown by the following exchange between the court and plaintiff's counsel:

'THE COURT: Well, I somewhat misunderstood what you indicated the nature of your testimony would be. And you do not intend to ask either one of these men if on such and such an occasion, in talking with so and so--

'MR. ROTHSCHILD: Yes.

'THE COURT:--they said that there should have been a person on the deck on the date in question?

'MR. ROTHSCHILD: No. This relates to--

'THE COURT: Subsequent conduct.

'MR. ROTHSCHILD:--subsequent conduct.

'THE COURT: All right. The motion is overruled, and that evidence, in my judgment, is not within--in the exercise of my discretion I'm ruling that you're not going to be permitted to recall them to go into that subsequent statement of the care that they considered to be used from now on. I mean from the time after. If this had been statements on their part that was directly in conflict with their opinion yesterday that they had expressed an opinion that there should have been a guard on the deck on July 17, 1970, I would have permitted you to do that. * * *'

We cannot say the court abused its discretion in refusing to allow the proposed evidence as rebuttal testimony. See Karr v. Samuelson, Inc., 176 N.W.2d 204, 211--212 (Iowa 1970); Hamdorf v. Corrie, 251 Iowa 896, 909--910, 101 N.W.2d 836, 844 (1960); Robson v. Barnett, 241 Iowa 1066, 1070--1071, 44...