*1 proposition touch the Once it is determined here. service by leaving copy person made at proper with a defendant’s abode, usual place uniformly upheld. Milliken such service is Meyer, 61 Ct. U. S. 85 L. Ed. S. A. 132 L. R. 1357. prisoner may Because a a federal institution charge, 56(d), served official rule Pro Rules Civil cedure, way 56(a). in no affects service under rule Both are permissive. case is reversed and remanded for further proceedings. and remanded.
—Reversed
All Justioes concur. appellant, v. Donald Christianson, Kramer, Harold d/b/a Repair and Arthur A. Neu, Kramer Shop, Shoe executor Beverly, appellees. of estate of Adda
No. 51564. 644) (Reported in 135 N.W.2d *3 8, 1965. June n (cid:127) Schechtman, Carroll, appellant. & of for Wunschel Leighton A. for Wederath, Carroll, appellee of Donald n Kepair . Kramer, Shop. Kramer Shoe .- d/b/a Denison,
Floyd Page, White, E. and Edward of S. of Car- appellee A. roll, for Arthur executor estate of Adda Neu, . Beverly. . brought action to C. this law J.—Plaintiff recover
Garfield, falling icy step leading on an for-personal injury from to.a.base- repair Defendant shop of defendant Donald Kramer. ment shoe Beverly, estate of Adda owner of was executor of the- the Neu Trial building the business district Carroll. resulted plaintiff jury for from which judgment' on verdict defendants appeals.' judgment first .in on trial the case ended directed
verdict .plaintiff’s appeal On we reversed that defendants. judgment and remanded the for another trial from which case present Kramer, the appeal resulted. 255 Iowa Christianson v. quite upon N.W.2d 283.. Evidence the two trials was similar. opinion fully upon Since the cited recites the evidence the former trial, extended statement of the the evidence'at later . deemed unnecessary trial-is
Prior to
declaratory-judgment
the former trial
action was
a
also commenced and tried as to whether'defendant Kramer’s lia-
bility,-if any,
liability policy.
was insured
certain
a
appealed.
That ease was also
Pacific
of N. Y. v.
Insurance Co.
Christianson,
There was along one between the sidewalk the front of building in question platform-leading remaining and a to the eight steps to steps the basement. Plaintiff started descend the January about 6, 1960, carrying cup 10 a.m..on of hot coffee emerged each hand. As was so doing lady he from shoe repair shop steps. and right ascended the Plaintiff 'to his moved (west) lady patch to allow pass- slippéd on a fell of ice about a foot wide at the west end of the fourth or fifth step. steps cut. inches width. Plaintiff his left n wrist injury. in the fall suffered permanent severe and n A ledge stone between -the -first and second stories of the building protruded brick from front wall about afoot. -Snow -ledge on accumulated and when it from thawed-water ledge below, dripped steps forming onto the -ice when-it froze: days January jury Snow had fallen a 6-and, few before could ice on find, by’dripping'from which fell was-caused *4 ledge. I. assigned first error in' the trial Plaintiff’s court’s re- prior admit fusal to evidence accidents. Plaintiff' called de- him,' Kramer his witness and fendant as asked “Before this acci- you steps dent did have someone else fall on these on-the ice?” objection of Kramer’s The court sustained counsel as irrele- vant and immaterial.
It now well settled in'Iowa that prior- evidence of same-place instrumentality accidénte at the or with.the same 978 tending as admissible substantially similar conditions
under knowledge thereof and dangerous unsafe condition to show a and R. & P. St. P. Chicago, M., v. party. offending Jackson citations; Berk 97, 103, and Co., Iowa 30 N.W.2d cita 905, 909, and 370, 117 N.W.2d Arendts, 363, v. Iowa 644. 641, 1291, 1285, tions; Scott, Mead v. Mead Berk and 172. The 167, A. L. R.2d annotation, 70 See also appear must it be admitted say to opinions that for such evidence not too remote. the occurrences comparable and conditions were 198, 208. supra, pages annotation, R.2d, L. at 70 A. also See complained was why ruling reasons There are two and we proof was made First, no offer of not reversible error. would have answer way knowing what the witness’ no have Obviously a new trial should negative. may been—it have been might be unfavorable an answer that granted permit not 1073, Co., 229 Iowa York Life Ins. New plaintiff. Olson v. 559, Lainson, 835; 295 N.W. Sewell Error, Jur.2d, section Appeal Am. and 556, 559; 5 57 N.W.2d 604, page 70. question hardly be said place,
In
can
the second
con
substantially similar
prior falls under
called for evidence of
may
prior
claimed
falls
too remote. The
ditions at
time not
completely covered
night
steps
were
at
when
have occurred
years before
conditions several
with ice or under other dissimilar
National Live
in
connection Crouch v.
plaintiff fell. See
cita
217 N.W.
and
Remedy Co.,
51, 63, 64,
stock
Jur.,
584; 20 Am.
S., Evidence,
sections
tions; 32 C. J.
L. R.2d
208.
Annotation, 70 A.
Evidence,
305;
section
assignments of
fourth
error
II.
second and
Plaintiff’s
copy of his income tax
evidence of a
are
the exclusion from
testimony
the fair
rea
1960 and
as to
returns for
hospital
nursing
the Vet
medical,
service
value of
sonable
injuries.
treating
furnished
Administration
erans
rulings may
these
not
In
for defendants
view of
verdict
jury evidently found
defendants
prejudicial.
be deemed
plaintiff.
plaintiff’s
As
counsel conceded
liable
hardly
based, even
could
have been
argument,
the verdict
injured
damaged.
plaintiff was not
or
These
finding
on a
part,
*5
go
claimed
measure,
right,
errors
to the
the
recovery.
not
As
frequently said,
errors, if any,
by
the
were cured
the verdict for
defendants. Janvrin
Broe,
v.
33 N.W.2d
431; Shannon Gaar,
III. assigned The third in overruling error is plain tiff’s motion for a mistrial. Plaintiff called out of order as a witness, Dr. Lulu, Donald surgeon at the Veterans Adminis Hospital tration in Moines, Des plaintiff’s injuries who described and the given treatment him. He was said to suffering be from painful affliction following injury an nerves, his claimed to by have been caused fall. On cross-examination the witness was asked whether hospital the file of case he had with him plaintiff’s disclosed that at or appearance before hospital at the for operations these he came with complaints, there based on alcoholism or nervous disorder. Plaintiff’s immediately counsel moved for ground a mistrial question on the was asked to prejudice jury against his case.
Defendants’ question counsel insisted the was in a asked good faith attempt to plaintiff’s show nervous disorder was caused steps. his fall down the The court question ruled the might proper, if that a lack of developed, basis for later jury would disregard be admonished to question. witness first “yes” answered but later said his answer would be “no.” explained doctor then alcoholism could account for a nervous condition injury but not for an plaintiff’s nerves— injury cause of such an would be traumatic. evidently
The trial court jury decided the should not con- sider the matter of alcoholism or nervous condition. One of the court’s jury instructions told the reference was during made trial to these matters but that in arriving at their verdict no given consideration should be such matters. may
Some other evidence be referred to. Doctor Lulu testi- fied on direct examination hospital not in the anything other than he described. Dr. Josef Martin Carroll, of- *6 injury, testified following his many plaintiff times
who treated noticed evidence objection he that without on cross-examination several'times. reported for treatment drinking plaintiff when of in 1953-54 nearly 22 months military in the service Plaintiff was little” “a was shell-shocked in 16 months. He and served Korea disability his ears. of percent and received 10 the service to an abuse of discretion persuaded was We are not dis has considerable mistrial. The trial court refuse to declare a misconduct, if there was alleged determining whether cretion appraise the to Certainly able such, prejudicial. he is better was- ruling with such a not interfere than we are. We will situation abused. has been reasonably discretion unless it is clear such 128 583, 591, 638, N.W.2d Wright, 256 Iowa 127 Castner v. 1285, supra, 256 Iowa citations; Scott, 885, N.W.2d Mead v. 1290, 641, 644, N.W.2d and citations. 130 of asking disregard the
Further, instructing jury to ordinarily ground no leaves question claimed to be misconduct it manifest except in instances where complaint for extreme despite influenced the verdict prejudicial effect remained and Wright, supra, and v. citations. the instruction. See Castner 130, 311, 21 N.W.2d Connelly Nolte, v. 237 Iowa ap proposition unless it many that precedents for the cites but been reached result would have pears probable different party we prevailing of counsel for the claimed misconduct for ruling. like in-interfering a. To with such are not warranted 846, 853, 854, 114 N.W. Greenberg, Iowa Corkery v. 253 effect 327, 331, 2d citations. by that defendants
There was no evidence or claim nor was character drinking morning fell had been he ground he an alcoholic. assailed on the of six re assigns error the refusal IV. Plaintiff as assign He not entitled have quested jury instructions. object to the refusal as re he did not considered because ment object Nor did Procedure. he 196, Rules of Civil quired rule in his motion court, (belatedly) even any time in the trial at trial. new requires “all many that rule pointed out times
We have give any failing instruction must giving or objections to made [*] * specifying tbe grounds thereof, before the. instruc jury (emphasis, added). adds, tions are read to the The rule . objections grounds thereafter, “No or other shall -beasserted or appeal.” Spry Lamont, on considered v. citations; Hester Meewes,
N.W.2d v. 308, 309, 310; Highway Crist Iowa State . 615, 628, 629, 2 Comm., 123 N.W.2d 43 say requests For we counsel’s will three benefit that included, substance, given. in the These instructions right, measure, recovery. related not the On the con- hereof, these-specific siderations stated Division II refusal of requests prejudicial could not in any be deemed event, in view requests the verdict for defendants. Insofar as the dealt with duty defendants’ toward we think *7 given the instructions ¡ n . adequately covered matter. the remaining assigned V. errors are directed to of some- the court’s instructions. We find no reversible error in them upon any ground timely in asserted' the trial court assigned and argued and here. propositions plaintiff six
Instruction set out required was prove to in that-plaintiff-was order to recover. The first-was invitee, descending steps the as an customer or prospective cus- plaintiff upon tomer. The second was that fell ice defendants had remain and permitted present dangerous- to a and- hazardous remaining propositions four condition. The that were defend- negligent respects ants or more charged in one submit- 'and proximate ted, negligence plaintiff’s such was-the cause of in- plaintiff was juries, contributorially negligent, and that he damaged in amount was some and the extent Objection thereof. to proof only the of was that proposi- instruction four the.last required. should have been tions ordinary in instructions an action to recover dam
ages negligence only for claimed enumerate proposir the last four it tions stated instruction but is not' unheard of or neces sarily improper precede to propositions them such as the first proper two to that a here. instruct must It have been injured substantially alleged in the petition, manner in -his Propositions' repeat in instruction 10 and the substance of negligence grounds allegations petition than the the other under to recover charged. was not entitled therein Plaintiff upon de- ice he fell was an invitee or unless petition unless he dangerous a present had to remain and permitted fendants instructing’ justified in trial court was hazardous condition. The petition was neces- in the jury allegations that of these proof 10. Sandven, sary. Calkins v. proposition stated amplified the first Instruction 11 VI. duty it can be claimed shopkeeper said a owes no 10. It upon trespasser or one who comes here to a mere violated invitation, express he owes implied or but premises without upon premises by such an invitation duty coming to one injury; protect him from unless reasonable care exercise shop defendant’s as descending the stairs enter plaintiff was him customer, did not defendants owe prospective or customer safety, exercising care for his but if he duty reasonable he was an en- prospective customer invitee was a customer or safety. for his exercise reasonable care titled to have defendants strongest objection it to this instruction that Plaintiff’s necessary prospective him or cus- to be a customer was not be an invitee toward whom defendants must tomer in order to agree an care. As abstract statement we with reasonable exercise testimony, There instruction. undenied this criticism frequently ICramer had coffee too, defendant that shop, they it buying plain- took turns together in latter’s day clear if plaintiff’s pur- he fell. It is that bought tiff pursuant shop was to take coffee to Kramer pose going to the *8 acting custom, plaintiff implied was with at least to this invita- Kramer. tion of of in law abstract statements instruction 11 are applying in them to the evidence re but instruction
correct prove prospective a quired plaintiff to he was customer or cus qualify as an invitee. If not for the tomer in order to petition petition this would be allegations of the error. But the descending shop to the steps was “to have alleged plaintiff repaired and was a business Plaintiff footwear invitee.” some going shop repairing to the to ask Kramer about he was testified evidently prospective boots, as a customer. The some court.was
983 petition allegation tbe of- requiring proof in warranted Harrington Sandven, supra; v. just v. to. Calkins referred Jur., 713, 716; 53 Am. Iowa 92, 8 N.W.2d Fortman, 233 Trial, 574. section n for an invitee he other reason plaintiff If claimed was some in Or,'at the absence of alleged.. have least motion so- he should merely alleged was statement, could have he specific he for more further invitation, steps at Kramer’s without descending the bearing S., page 987. as Trial, 381e, See J. section detail. 88 C. , 131 Co., this v. Potthoff-Rosene on Grantham 224 256, and citations. assigned, 13 not as giving VII. instruction therefore deemed waived. Any the instruction is error. error ob find 344(a) (Third), Rules of Civil Procedure. We (4) Rule assigned argued 15 16 jections instructions and which are merit. are without in instruction attention to an error
We desire to call court. The error was not called the trial attention to which by argued instruction not giving did assert 344(a)(4) deemed waived. Rule it is also therefore him and de fact (Third). stated that the Instruction prospective need steps a customer or customer scending the as by might evidence but be shown facts proven direct and circumstances related to each other “provided that [such] they are of such nature and are conclusion [*] [*] * only' so' fairly reasonably or be drawn from the facts that can [one] circumstances.” ours, repeated is in accord with decisions instruction
This Q. Co., 248, 250, R. Iowa Chicago, B. & Asbach from Brooks, to In re Estate of 183, down N.W. Hopkins (1941), Co. 735. Low v. Ford
495, 294 N.W. judg declines to 1 N.W.2d reverse plaintiff’s appeal -an instruction defendant on because ment quoted like the one which was combined- a statement included claimed must-be more that conclusion with a statement ‘ ” any probable than other. 12 here not-'been instruction has quoted But the statement kind- the.approved of this in a civil-case of this since rule court *9 included instructions on the measure should not be and circumstantial evidence. An issue proof of a claimed fact pro- may proven by evidence a civil be circumstantial case theory reason- the is such as to make the claimed vided evidence merely possible, probable any not more ably probable, and than necessary It theory based on such evidence. is not the other testimony every possible theory. to other be so clear as exclude Co., 41, 43, & N.W.2d Soreide Vilas citations; Johnson, Larson v. and 344(f) 16, and citations. See rule R. C. P. substantially Jury This rule embodied in the Uniform Instruc- published by tion the Iowa Bar 1.7 State Association. find not We entitled to reversal.—Affirmed. except JJ., All Justices concur who dis- Hays, Larson sent. respectfully majority J. —I dissent. Although the.
Larson,
plaintiff’s
Division III find
past
references to
with
difficulties
drinking improper, they do not believe the trial court
its
abused
discretion in
refusing
mistrial,
though
to declare
even
such a
promptly
motion was
proper
made at the
I
agree.
time.
cannot
This was no innocent
slip
interrogator.
It was a deliberate
attempt
plaintiff’s
to
liquor problem
connect
upon
with the fall
icy
an
stairway
resulting injury.
and the
In a former appeal a
warning
given
inject
was
subject
not to
in this lawsuit.
Kramer,
Christianson v.
There was also other evidence of drinking received, all hard believe this did not unfavorably influence jury. *10 hold it mistrial, and I would a have declared The court should damage done doing so. its discretion abused jury of the The members first was made. when the reference their minds. made on impression unfair could not erase the image of improper drinking increased Added reference to would rights. verdict seriously prejudiced corruptive longer from matter. no be free new prejudicial grant I errors would For these liquor, probabilities trial. Without the references appear great to me. different result J., joins in dissent.
Hays, intervenors- Davies, al., Evan Donald et appellant, Masters County Board Education appellants, v. Monona al., appellees. et 51701.
No. 663) (Reported in 135 N.W.2d