Wosoba v. Kenyon

• Decision Date: 24 June 1932
• Docket Number: No. 41360.,41360.
• Citation: 243 N.W. 569,215 Iowa 226
• Parties: WOSOBA v. KENYON ET AL.
• Court: Iowa Supreme Court

215 Iowa 226

243 N.W. 569

WOSOBA

v.KENYON ET AL.

No. 41360.

Supreme Court of Iowa.

June 24, 1932.

Appeal from District Court, Dallas County; W. S. Cooper, Judge.

This was an action by the plaintiff to recover damages from the defendants for injuries received in an automobile accident. There was a trial to a jury resulting in a verdict for the plaintiff. From the judgment entered thereon, the defendants appeal.

Affirmed.

GRIMM, J., dissenting.Burton Russell, of Adel, and Putnam, Putnam & Forrest, of Des Moines, for appellants.

Harry Wifvat, of Perry, for appellee.

KINDIG, J.

In the evening of October 30, 1930, the plaintiff-appellee, Robert Wosoba, and his companion, Francis Webber, drove east from Perry in a Chevrolet touring car. After they had traveled a few miles on the paved highway, they arrived at an “S” curve, when the motor, because of some mechanical defect, stopped running. Although the engine had ceased running, inertia nevertheless caused the automobile to go forward, and the driver turned it to the side onto the shoulder of the road. There the car stopped and appellee and his companion attempted to repair it. Some time was spent in this endeavor, but finally appellee and his companion decided that they could not remedy the defect. So they concluded to turn the car around and push it back over the pavement to Perry.

Francis Webber, appellee's companion, put one hand on the steering wheel and the other on the front fender in order that the car might be pushed forward and guided in the meantime. Appellee at the same time went to the rear of the car and pushed from there. As appellee and his companion were thus proceeding forward toward Perry, the defendant-appellant Paul Kenyon and Glenn Scott were operating another vehicle in the same direction behind them.

When appellant and his companion approached the car being pushed by appellee and his companion, the former did not see the stalled automobile until they were within ten feet thereof. Consequently, appellant ran into the stalled car and crushed appellee against it, thereby causing him severe and permanent injuries.

For the purpose of recovering damages for those injuries, the appellee commenced this action against both the appellant Paul and the defendant-appellant Wylie Kenyon, but for some reason the cause proceeded to trial against the appellant Paul Kenyon only. Convenience, therefore, dictates that hereafter when the word “appellant” is used, it shall refer to Paul Kenyon alone.

A jury returned a verdict for the appellee, and the appellant appeals from the judgment entered thereon. On the appeal three propositions are argued by the appellant. Two of appellant's complaints relate to the trial court's instructions to the jury; and one of the appellant's objections relates to the district court's ruling on evidence.

[1] I. It is claimed by the appellant that the district court erred in instructing the jury concerning the amount of damages it should allow the appellee providing the appellant was negligent.

In his petition, the appellee asked for $20,000 general damages. Then, in an amendment to the petition, the appellee demanded additional damages for expenditures made by him in the following itemized amounts: Hospital expenses, $1,152.70; doctors' bills, $812; braces for leg, $45; nurse's bill, $641; incidental expenses, $11.25; ambulance service, $115. Thereby the total amount of the damages asked by the appellee was $22,776.95.

When instructing the jury concerning the amount of damages which it might allow the appellee, the district court said, in instruction No. 17, that such sum “must not exceed the amount of $22,776.95.” By so doing, the district court did not limit the amount of such recovery for general damages to the amount of $20,000. Nor did it limit the amount of the aforesaid itemized damages to the sum named in the petition for each item above designated. Hence, the appellant claims that the district court was in error.

Concerning a somewhat similar question, this court said in Sergeant v. Challis, 238 N. W. 442, reading on page 446: “Relative to the measure of plaintiff's recovery, the court told the jury: ‘If your finding is for the plaintiff, then you are instructed that you are to allow the plaintiff damages for such loss and injuries, and for such loss and injuries only, as you find from the evidence necessarily resulted from the collision complained of. In no event, however, will you allow the plaintiff a sum in excess of $6,656.00.’ This instruction cannot be upheld. The plaintiff in his petition alleged a specific amount of damage for loss of time, a specific amount for nursing and caring for him, and a specific amount for permanent impairment or injury, and asked judgment for all of the same in the sum of $6,656. The court, in the aforesaid instruction, does not tell the jury what elements may be considered by them in fixing the amount of plaintiff's recovery, nor fix the limit of recovery for the different elements mentioned in the petition to that alleged in the petition, nor as shown by the evidence relative thereto.” Therefore, because of the foregoing pronouncement in the Sergeant Case, the appellant insists that the instruction given in the case at bar is erroneous. Manifestly the district court should have told the jury that in allowing appellee damages for the doctor bill, no more could be allowed than the amount claimed therefor in the petition. Likewise, the district court should have repeated this thought concerning each item of damages asked; that is to say, appellee could not recover for any one item of damages listed a greater sum than the amount specifically asked therefor in the petition. So, too, the jury could not allow a greater sum than the aggregate amount asked in appellee's petition for the total damages. Of course, in no event could the jury allow any sum, even within the limitations above named, not supported by the evidence.

[2][3] Wherefore, the instruction before mentioned, when considered alone, is erroneous. It is obvious, of course, that instructions must be read together. The appellee argues, therefore, that when the foregoing instruction is read in connection with instruction 15, the apparent error is overcome. In this second instruction, the district court told the jury that it could allow appellee for no item of damage a greater sum than “established by the evidence.” Accordingly, it is the further contention of the appellee that the evidence in the case at bar established the various items of damages named in the petition, and nothing more. To put the thought differently, it is appellee's claim that the evidence did not support any greater amount of damages for any item than the amount demanded therefor in the petition. This being true, it is appellee's conclusion that even though the instructions were not as complete and full as they should have been, the appellant is not prejudiced under the circumstances. There could be no prejudice under the record, the appellee asserts, because the evidence does not sustain any greater amount of damage for any item claimed than the sum asked therefor in the petition. A careful reading of the record indicates that this is true with the possible exception of the general damages. Twenty thousand dollars, as before indicated, is the amount claimed in the petition for general damages, but the verdict of the jury on all damages was only $7,700. So it is apparent that the jury did not allow more than $20,000 general damages.

All the evidence offered by the appellee sustains each item of damage to the amount claimed therefor in the petition, with the exception possibly of the general damages. But there is no evidence supporting any amount of damage for any such item above the sum asked therefor in the petition. Under the circumstances, then, the error of the district court in no way prejudiced the appellant. That being true, the appellant is not entitled to a new trial on this ground. See, generally, Harriman v. Roberts, 211 Iowa, 1372, 235 N. W. 751;Butler Mfg. Co. v. Elliott & Cox, 211 Iowa, 1068, 233 N. W. 669;A. Y. McDonald Co. v. Morrison, 211 Iowa, 882, 228 N. W. 878;Eilers v. Frieling, 211 Iowa, 841, 234 N. W. 275;Siesseger v. Puth, 211 Iowa, 775, 234 N. W. 540;Thielen v. Schechinger, 211 Iowa, 470, 233 N. W. 750;O'Hara v. Chaplin, 211 Iowa, 404, 233 N. W. 516;Foley v. Mathias, 211 Iowa, 160, 233 N. W. 106.

[4] II. Again it is contended by appellant that the district court erred in instructing the jury on one ground of negligence relied upon by the appellee as a basis for recovery. Such ground of negligence relates to the duty of appellant to drive at no greater speed than would permit him to stop within the “assured clear distance ahead.” Section 5029 of the 1931 and preceding Codes, provides: “Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.” (The italics are ours.)

When instructing the jury upon this subject, the district court told that body that a failure to so control the automobile would be negligence upon appellant's part. The criticism of this instruction offered by the appellant is that the negligence therein referred to is not such as a matter of law, but prima facie only. Underlying appellant's contention is the thought that the instruction did not permit him to offer an excuse for violating the statute. Once more appellant refers to Sergeant v. Challis (238 N. W. 442), supra. There this court said, reading on page 446 of 238 N. W.: “It is the duty of all persons using the highway to comply with this provision of the statutory law; but, if it...