300 N.W. 727 | Iowa | 1941
On June 22, 1938, defendant took a load of cattle in his truck from Washington, Iowa, to Chicago. After delivering the cattle, he loaded his truck with 5 tons of binding twine and started on the return trip. Plaintiff's decedent, 29 years of age, and one Bennett, the owner of the cattle, rode with defendant as his guests. As he drove west on U.S. Highway 34, a four-lane highway 40-feet wide, in the town of Downers Grove, defendant collided with the left rear end of a 2-ton truck belonging to the Tri-City Packing Co. which was also headed west. Both Greiner and Bennett were killed in the collision.
Shortly prior to the collision the Tri-City truck, driven by one Babcock, was stopped, headed west, partly on and partly off the north side of the paving. It appears without dispute that Babcock backed his truck for some distance shortly before the collision. Babcock as a witness claims that he brought his truck to a complete stop when he saw defendant's truck approaching about two blocks to the east and that it was stationary at the time of impact. It is defendant's claim as a witness that immediately prior to the collision the Tri-City truck backed to the south and east so suddenly and unexpectedly that there was little opportunity for him to avoid the collision. Defendant testifies that he saw the Tri-City truck when he was more than a block east of the place of collision. The highway was straight and fairly level and there was nothing to obstruct the driver's view. An eyewitness placed appellant's speed at the time of impact at 50 to 60 miles per hour.
The administratrix of Greiner's estate brought this suit under the Illinois law permitting recovery for injury to or death of a guest caused by wanton and wilful misconduct of the operator of the motor vehicle. The jury returned a verdict for defendant. Upon plaintiff's motion, the trial court set the verdict aside and granted a new trial, from which ruling defendant has appealed.
[1] I. We have repeatedly held that the trial judge has considerable discretion in the granting of a new trial, and this court will not interfere unless there is a clear abuse of that discretion. Where, as here, the motion for new trial contains numerous grounds, the granting of a new trial will be sustained if any one of the grounds is good. We have also held that *145
even though no single ground of the motion is sufficient, yet if, when considered together, all grounds reasonably support the granting of a new trial, the order will be affirmed. Brunssen v. Parker,
[2] II. The justification for a new trial most strenuously urged by appellee is that the allegations of her petition stood admitted by appellant's answer as amended and that consequently the trial court should have submitted to the jury only the amount of appellee's recovery. The original answer was, in effect, a general denial. During the course of the trial, the answer was amended by alleging that plaintiff had received from the Tri-City Packing Co., or someone on its behalf, a joint tort-feasor, $2,750, on account of the pecuniary damages resulting from the death of plaintiff's intestate. The amendment was not designated a separate division of the answer. In her motion for new trial, appellee for the first time raised the question that the new matter alleged in the amendment amounted to a waiver of the denial in the original answer; that, therefore, the petition stood admitted. Appellee relies on Miller v. Johnson,
[3] III. It appears in evidence without dispute that appellee received $2,750 from the Tri-City Packing Company and in return executed a covenant not to sue said company, its insurer, its employee Babcock or any other employee "for or on account of damages for the death of Doniel Greiner." The instrument provides that it is not a release but a covenant not to sue. In Instructions 24 and 25, the court told the jury that defendant was entitled to a credit of $2,750 upon any amount they should allow plaintiff. Plaintiff excepted to the instruction, claiming that defendant is not entitled to this credit.
This court has never directly passed on the question whether money paid the injured party by a joint tort-feasor in return for a covenant not to sue the party making payment must be applied to reduce pro tanto the recovery against the other wrongdoer. In Renner v. Model. L., C. D. Co.,
Although there are some decisions to the contrary, the decided weight of authority is that whatever consideration is received from a joint tort-feasor for a covenant not to sue reduces pro tanto the recovery against the other wrongdoers. 53 C.J. 1264, section 80; 23 R.C.L. 407, section 36. The cases are cited and discussed in Annotation, 104 A.L.R. 931. Among the numerous cases supporting this rule are Brandstein v. Ironbound Transp. Co.,
We are disposed to follow the decided weight of authority and hold that appellant was entitled to the credit of $2,750.
Appellee argues that the court should have required a finding that the Tri-City Company was in fact a joint tort-feasor and actually liable to appellee. This was not necessary. There was ample evidence of the negligence of Babcock, the Tri-City driver, and it sufficiently appears that appellee could have sued the Tri-City Company. It was not necessary (if such were possible) for appellant to show what the outcome of such a suit would be. See Barden v. Hurd,
[4] IV. Appellee seeks to justify the granting of a new trial by claiming that the court erred in defining the term, negligence, in Instruction 5. It is argued that negligence was in no way involved in the case and to define the term served merely to confuse the jury. Kaufman v. Borg,
[5] V. Appellee also seeks to justify the ruling appealed from because of the claimed error in the giving of Instruction 17 wherein the jury was told that defendant was not liable for *148
the happening of an accident without wilful and wanton misconduct on his part, and if they found that the injury and death of decedent was the result of an unexpected and unforeseen occurrence not caused by such misconduct of defendant, then their verdict should be for defendant. Appellee says there was no evidence to justify the giving of such instruction; that the evidence shows the collision was not the result of accident. Keller v. Gartin,
[6] VI. Appellee also contends that the granting of a new trial was justified because of the claimed error in Instruction 14 dealing with the question of negligence of Babcock, the Tri-City driver. The jury was told that if Babcock was negligent and his negligence was the sole proximate cause of the collision, then plaintiff could not recover. Appellee complains that the instruction was not proper because no issue was raised by the pleadings as to the negligence of Babcock, citing Johnson v. McVicker,
[7] VII. One of the grounds of the motion for new trial was the error in giving Instruction 12 in which the jury was told that if they found plaintiff's decedent and defendant both guilty of wilful and wanton misconduct which was the *149 proximate cause of the collision, then plaintiff could not recover. This instruction is clearly erroneous for two reasons. First, the matter was entirely beyond the issues. Second, there was no evidence of any misconduct on the part of decedent which justified the instruction. Appellee's exception to this instruction was good. This in itself furnished sufficient reason for the granting of the new trial, especially in view of other errors hereinafter mentioned.
[8] VIII. Because of a retrial, we think it proper to point out other errors shown by the record, even though not challenged by the motion for new trial, to the end that they may not be repeated.
In the 8th instruction the court told the jury that wanton and wilful misconduct might consist of the following: First, where defendant has failed to exercise ordinary care when a known and extraordinary danger is imminent. Second, where defendant, through recklessness, regardless of danger to another, has carelessly failed to discover an extraordinary and impending danger which should have been discovered by the exercise of ordinary care. Third, carelessness so gross in its nature as to indicate a mind reckless and regardless of consequences.
During the course of the trial, the parties stipulated that under Illinois law wilful and wanton misconduct might occur in any of the ways stated in this instruction. Consequently, we express no opinion upon the accuracy of these definitions given the jury. We hold, however, that the evidence was insufficient to warrant the submission of either the second or third of the above definitions, and that the only kind of claimed wanton and wilful misconduct which the court should have submitted was the failure to exercise ordinary care when a known and extraordinary danger is imminent.
[9] IX. In this connection, appellant contends that he was entitled to a directed verdict because the evidence of wilful and wanton misconduct was insufficient, and it was therefore error to set aside the verdict of the jury. See Bennett v. Ryan,
[10] X. In the 9th instruction the court told the jury that if they found defendant guilty of wilful and wanton misconduct which was the proximate cause of decedent's injury and death, then their verdict should be for plaintiff. This instruction is incorrect. Appellee's petition alleged various specifications of wanton and wilful misconduct. Since appellee specified the acts of misconduct upon which she relied, the jury should have been confined to a consideration of the specifications pleaded. McKlveen v. Townley,
[11] XI. In Instruction 13 the court stated the Illinois law regarding the speed of motor vehicles and the duty of an overtaking vehicle to pass to the left at a safe distance. The jury was then instructed that if they found defendant violated these provisions of law, they should "determine whether or not said violation, if any, constituted wanton and wilful misconduct." The jury could scarcely fail to understand from this instruction that the mere violation of these statutory provisions constituted wanton and wilful misconduct. This, of course, is not the law and the jury should have been plainly told that mere violation of these statutes would not amount to wanton and wilful misconduct.
Since we find no abuse of discretion in the order granting a new trial, it is affirmed. — Affirmed.
*151CHIEF JUSTICE and all JUSTICES concur.