*1 rеquirement for establishes decree AVERY, Stephen his failure is F. for petitioner Conservator to the notice Munden, George become, and Frances substantial. has becoming, or Munden, Appellants, forfeiture. hearing before require fails to almost failure” “substantial the term Yet to define. litigation require certainly would HARMS IMPLEMENT COMPANY and to would have Moreover, failure any such justify to de- in ordеr quite substantial be Company, Appellees. his half of the petitioner priving No. 58087. gravity peti- equity. And siderable Supreme become Court of Iowa. would forfeiture potential tioner’s be faithful to he continues greater 18, 1978. Oct. Missing from payments. making his the will- flexibility of is the remedy 598.23, contempt, for requirement fulness if protect petitioner Code, would v. Max- Porter disabled.
he should become 226 N.W.
well, Iowa interest primary
Finally, whereas to an order obedience compel
should be Harkins, court, Hаrkins pro- appears here consideration
vision under thus in nature. It is essentially punitive
be v. District Nystrom Cf.
impermissible. Woodbury County, in and
Court (1953) (“the 735, 739, N.W.2d
Iowa pronounce sentence had no compliance with after imprisonment decree”). It must be ex-
. divorce
cised. remand, enter re- court shall
On opinion. with this consistent
vised decree equally shall be taxed
Costs parties. MODIFIED.
AFFIRMED AS except concur McGIVERIN
All Justices JJ., LARSON, part. who take no
By a series of counterclaims cross-pe- titions, General Electric Corp., Stewart- Warner Corp., and International Harvester Company were brought into the case on various claims for contribution and indem- nity. Since Harms was successful in de- *3 fending against claim, Munden’s the contri- bution and indemnity questions never mate- rialized. We therefore need not consider them further. Hawkins, Ward, Moines, Hedberg & Des trial, Immediately prior Munden set- appellants.
for Myrtle tled with both Roberts and Russell Jones, Davison, Moines, Christiansen, Roberts, Hoffmann & Des Mrs. in turn, settled International for Harvester Co. her against counterclaim Munden and her cross-petition against Christiansen. The Kunze, Gleysteen, Harper, Eidsmoe & case went to trial on the claims of Munden Heidman, City, Implement for Harms Sioux and Mrs. against Roberts Harms Implement Co. Company. jury rejected all claims.
Mrs. Roberts appealed, has not and this case solely here appeal. Munden’s LeGRAND, Justice. Although most of the issues involve Mun- giving litigation accident rise to this den’s claim against Implement Co., Harms being occurred when a tractor driven there separate is one matter between Mun- George along a public highway was den and International Harvester Company. struck from the rear an automobile Munden challenges the trial court’s dismiss- by Myrtle owned and driven M. Roberts. al of his against action that party. The George injuries, Munden sustained serious trial court ruled the amendment which a physical brought both and mental. He suit claim was first against asserted Interna- wife, Frances, damages. joined for his His tional Harvester Company was not filed plaintiff as a for loss of consortium. While within the two-year statute of limitations. pending, the suit was a conservator was See 614.1(2), The Code. This is discussed appointed George for Munden and was sub- later. stituted him plaintiff. as For conve- nience plaintiffs we refer to both as Mun- We consider first Munden’s appeal den. Trial to a resulted in verdicts for Implement Company, which appeal the defendants and this followed. raises these four issues: We reverse and remand new trial. 1. Error in permitting third-party stipu- issues, discussing Before we first de- during lations trial over Munden’s ob- procedural processes scribe the involved jections. which this reaches us. Jury 2. misconduct in considering mat- The petition originally filed Mun- ters outside record. against Myrtle Roberts, den was M. 3. Refusal permit cross-examination owner and driver of the vehicle which of one of principal defendant’s wit- struck the petition tractor. Later the nesses. amended to include Russell Christiansen 4. Error in Instructions. (George employer) Munden’s and Harms Implement (seller tractor) up of the I. We take first the issue we be dispositive additional defendants. Another lieve to be amend- of the case—the as sought unsuccessfully bring in as a sertion Munden was denied the to full defendant Compa- the witness Jack ny, Harms, the manufacturer of the tractor. president of Harms Implement Munden, purpose and we obvious agree with all this was Company. We reversible court сommitted the trial show the lights operating believe were restricting cross-examination error and that there nowas malfunction attribut- witness. Implement able to Harms Company. The reference Hegel’s to Tom visit to the Chris- as this increasingly apparent It became during tri- tiansen farm two weeks before before the accident developed, both case the condition turned on al, that the outcome arguably was at least intended to raise the lights on the the rear operation of inference that whatever wrong parties doubt all There is no tractor. had been fixed. accordingly. the case this and tried realized in this context plaintiff un- witnesses for principal One dertook cross-examination of Mr. Harms. president, was its Jack some, We set out but not all of the com- evidence was considerable Harms. There says he he plaints by permit- malfunctioning *4 had been lights the tractor adequately. ted to do so the accident. Chris- weeks before several Although testimony much of Harms’ tractor) pur- the (the owner of tiansen explanation light- directed toward an of the Im- switch from Harms a new chased ing system displayed in the mock-up, and had tried unsuccess- plement request, not permitted it. At counsel was to show this did fully to install employee sent an truly represent lights how the tractor to the Christiansen farm Hegel Tom named actually appear would on the highway to accident, After the the lights. the repair approaching travelers from the rear. We repairs had been made of what question рroper believe this inquiry. line of lighting system operating how the Counsel wanted to show what Harms’ importance. paramount became employee (Hegel) should have done under of Mr. Harms During cross-examination company’s operating procedures the when matters, a number of ob- concerning these repair he went to Christiansen’s farm to the ground the the were sustained on jections lights. permitted He was not to do so scope the of direct beyond went- questions although Harms had testified on direct ex- objections were also Some examination. objections amination over Munden’s con- relevancy and grounds the sustained on cerning Hegel what did. rulings these materiality. We believe examination, error. During stitute reversible direct testi- the length fiеd about tractor’s repairs lighting to the question the use of different system and switch set- the case. On direct was vital to system tings. attempt On cross-examination an Hegel’s referred to examination Mr. Harms possibility was made to show the of other lights two the farm to trip to this, too, stated, settings. switch We believe the accident. He over weeks before Hegel up proper. had hoоked objection, how occasion.
lights on that Ordinarily scope of cross-exami testimony was Harms’ direct Much of Mr. nation is within the trial court’s discretion. establishing how devoted discretion, only We reverse for an abuse of graphic ex- This included system worked. appears prejudice it that and then if wiring system and the showing hibits resulted. We therefore have two matters could be ways in which different restricting to determine. Was the error in mock-up It included also a displayed. such to constitute an cross-examination jury which the was shown demonstration and, so, secondly, if abuse of discretion at the operation actual think prejudicial? questions it We both testimony about the accident with time of must be answered in the affirmative and distances, physical arrange- heights, require such a new trial. tractor. answers ment of the 650 of cross-examina scope complains also In While III. right to do so is 17 discretionary, struction told the a failure
tion is to have right essential to a fair position It is a switch in a certain and in absolute. Parole, failing v. Board of 220 warning light Thomas State use amber trial. 874, (Iowa 1974); Wheatley v. negligence per would be se. N.W.2d 695, 710, Heideman, 251 Iowa N.W.2d We do not believe the fairly Instruction is Dimmitt, 343, (1960); Dioptron v. Co. open to this construction. The Instruction 749, 450, 455, 62 N.W.2d 245 Iowa actually stated “required that Munden was (1954). ordinary to use reasonable and care” in the lighting equipment use of the and that a has afforded Only party after a been negligence. failure to do so would constitute and fair cross-exam opportunity for full an nothing wrong We see with this instruction. scope. the trial court limit its ination 368, Witnesses, p. (1957); 81 IV. We must still decide whether the § 98 C.J.S. Witnesses, (1976). p. court was in granting summary judg- Am.Jur.2d Griffith, 1163- ment for International Company, Pickerell (1947). briefly matter to which we referred earli- er. rules, Under our testified to in chief. limited to matters Munden’s cause of action was first Steege, 233 Iowa
Uhlenhopp
asserted
However,
this does Company
peti
in a third amendment
to his
сategori
counsel is restricted to a
tion filed more than
years
not mean
two-and-a-half
*5
motion,
those matters testified to on
cal review of
after
the accident. On
the trial
may
any
examination.
extend to
court entered summary judgment
direct
dismiss
subject
purview
ing
within the fair
of direct
the action
by
because it was barred
the
Monroe,
v.
236
614.1(2),
examination. State
N.W.2d
statute of limitations under
§
24,
1975);
Jensen,
(Iowa
granting
189
In
summary judgment,
29
State
Code.
919,
(Iowa 1971).
rejected
We have said
trial court
N.W.2d
Munden’s claim the stat
be used to rebut not
ute
may
of
limitations was extended under
614.8,
Code,
testimony
was,
but the
presump
the direct
because he
and
be,
testimony
inferences which such
continued to
mentally
tions or
ill. We neither
Dimmitt,
Dioptron Co. v.
reasonably
summary
raises
consider nor decide if
judgment
752;
456,
at
Wheat
properly granted
al Harvester Usually 252(c) is rule invoked defend- this. way changes Company in no ants who seek to excuse their failure to was not related against claim one against and defend a claim after appear on, agаinst claim dependent nor original being served notice. Here it other. court, plaintiff already is relied on challenge Munden’s We hold already vigorously pursuing rights of Internation- summary judgment in favor parties, already a number of active- against lost has been al Harvester seemingly in a endless— ly participating directed days within failure judging by the voluminous file —stream of 5, Rules of 335, R.C.P., (now rule by rule During all this time he proceedings. Although this issue Procedure). Appellate counsel, who at no time represented raised, jurisdictional is the matter necessary to claim he was of un- found it motion. on our own considered be mind. sound Corp., Chrysler Credit Qualley v. subject It is true Munden is now the of a 1978). (Iowa conservatorship, but a conservator was not result, anticipating Perhaps January until more than appointed the action sought to save already after the accident. As years four by filing noted, International lawyer his conservator is the who rule judgment under to vacate a motion originally represented appar- him and who denied, and The motion R.C.P. ently thought mentally competent him *6 error. assigned as this is now that time. George Mun- relied on is that ground not support The сases cited Munden do It is asserted of unsound mind.
den was Horner, In Watson v. position. vacated judgment should be summary 499, 501-02, Iowa 159 N.W. judg- a 252(c) provides which rule under judgment was set aside because pro- vacated for “erroneous may be ment alleged to be of unsound defendant * * * person of un- against a ceedings defense, appear, and mind did made sound mind.” steps protect took no himself. Similar Griffin, appear Hawley circumstances this prevail on hold Munden cannot We 667, 678, 92 N.W. 116-17 121 Iowa represented was argument. Munden (1902). his wife stages. In addition at all counsel arising asserting claims co-plaintiff, was hand, On the other we refused to set participated He the same accident. out of when it judgments aside in several cases over a two- proceedings in numerous аppeared party represented by was of At no time was defense year period. defense, counsel, and there presented had by Mun- disability asserted either mental showing the of party was no was unsound (who became his original counsel later den’s was entered. judgment mind when See counsel, conservator) who or his new Eckman, 224 Iowa Ware v. represents him. now (1937) Engelbercht 726-27 N.W. and 1401-02, Davison, enough, although the mat- 213 N.W. Interestingly in Munden’s mental illness was raised ter of lights which all four was not entitled to have front would be on and
We hold the only position light of Interna- in which the rear summary judgment in favor floodlight. would be on as a white af- was Company vacated and tional only setting other than “off” in which this issue. trial court on firm the taillight flashing light the red and amber for Interna- judgment V. We affirm the were not activated. dismissing Mun- tional Harvester theory Plaintiffs’ was that at the time of judgment claim. We reverse den’s the accident Munden had the Implement Company and defendant setting switch on a in which the taillight for a new trial. remand supposed show red but that because IN PART. REVERSED AFFIRMED IN paint flaking appeared it to be white. NEW TRI- REMANDED FOR PART AND They were confronted with evidence that AL. lights all four front were on time of accident and that the amber J., REYNOLDSON, C. and REES They sought explain not activated. UHLENHOPP, JJ., concur. tending and other evidence to show that the J., McCORMICK, opinion, dissents light switch position by the “R” HARRIS, J., joins. suggesting that the was improperly wired and not functioning as it should have LARSON, ALLBEE, McGIVERIN been at the time of the accident. JJ., part. take no Company employee McCORMICK, (dissenting). Justice Hegel, Tom who purportedly repaired the the trial court would Although I believe accident, tractor before the allowing its discretion in have acted within called an by plaintiffs adverse witness Harms, I would fuller cross-examination fully and was concerning examined rulings are reversible not hold the court’s event as well proper effects of error. improper wiring system. Harms’ testimony depended later injuries on the is based on suffered The action assumption Hegel repaired the tractor he was George Munden when in the manner he opinion claimed. His night the rear at driving was struck from the mock-up was wired in the way same an automobile. The country on a road admittedly based in part on “informa- testified she saw driver of the automobile tion . . . gained from the testimony light on the rear of the only single white in this lawsuit . .” Hegel Whether headlight was the thought it tractor and correctly performed had in fact oncoming Imple- car. Defendant Harms an depended credibility on his rather than that the tractor to Mun- had sold of Harms. taillight with that on it and employer den’s *7 lighting on the repaired had subsequent demonstration was thus the accident. system shortly before predicated Hegel’s testimony on repair purpose was done. Its equipped with two white The tractor to show the various lighting combinations fenders, mounted on the two front which would result when the light switch floodlamps mounted to the in- white front placed settings. available The dem- lights, light an amber side of the front onstration was indisputably accurate for fender which located on the left flashed purpose. rear, and a rear combination the front and taillight which could be used as either a testify Harms did not that the same con- taillight. When floodlight white or a red visibility ditions of high- would exist on the working properly it lighting system way in the courtroom. Nor do I find an “off”, “D”, “B”, settings, had four switch inference testimony. to that effect in his position sought unsuccessfully and “R”. The “R” used Plaintiffs to cross-ex- only position amine him about how certain cоm- fieldwork. It was the might appear person ap- to a major complaint binations Another plaintiffs is a proaching highway the tractor on ruling of the trial court denying them the night from the rear. trial court to conduct a during demonstration opinion Harms’ on that well have believed cross-examination with the amber dis- subject superfluous. jury would be plaintiffs’ connected. Under theory of the regarding the full conditions at picture case the amber may not have been fully capa- the accident and was the time of working at the time the accident. drawing ble of its own conclusions. See appropriate would have been for the court Hegtvedt 189- Prybil, to allow this during demonstration cross-ex- 1974). (Iowa amination. Nevertheless Harms offered to plaintiffs let use the mock-up later plaintiffs seeking impeach If were any.demonstration duct they part desired as through inquiry they did not case, of their own plaintiffs rejected Moreover, alert the trial court to that fact. this opportunity. They did show assuming purpose, that was their the cross- lighted taillight without the amber hardly necessary per- examination was light. No basis exists for finding prejudice jury that suade an Iowa conditions in the from the trial ruling subject. court’s on this courtroom were different than they were highway. on the In light of the trial range of dis- cretion in controlling cross-examination and complain Plaintiffs also of limitations the absence of prejudice from the rulings, I placed on their cross-examination of Harms do not believe reversible error has been operating procedures repairing about shown. Because I would also find the other lights. testify tractor Harms did not assignments of merit, error to be without I repair procedures. direct examination about would affirm the trial court. that the He said here was made by Hegel, who was a repairman. trained In plaintiffs’ attempting
fact were to cross-ex- HARRIS, J., joins in this dissent. deposition amine Harms about the testimo-
ny manager Zesiger, of his service Bill testimony.
about his own The trial court some of this
allowed cross-examination and
rejected some of it. I do not find basis holding the trial court abused its discre- limiting this
tion in cross-examination.