*1 knowledge. to the issue dard In-
The Uniform Instruction Committee’s 1423 and 1424
structions Numbers correct-
ly reflect the burden State to estab- defendant,
lish the time he
exercised control over the knew property, property believed had been sto-
len.
REVERSED. Judges except DONIELSON,
All concur
J., who dissents.
DONIELSON, Judge (dissenting).
I agree cannot the majority’s with con-
clusion that Instruction No. 15 established mandatory presumption. The final sen- stated,
tence the instruction shall “This considered other with evidence in this I
case.” believe this sentence in- properly jury
forms the reject could
presumption Furthermore, knowledge.
except sentence, for the final in- quote
struction was a verbatim of Iowa Thus,
Code section 321.81. majority’s necessarily requires
decision this case statutory
conclusion that provision
unconstitutional. I am troubled the fact
that our decision would have this effect parties
when the have not addressed
we considered constitutionali- provision.
ty It is far important too question decide such an indirect
manner. HAMILTON, D.
Plaintiff-Appellant, O’DONNELL,
James
Defendant-Appellee.
No. 83-1386.
Court of Appeals of Iowa.
Feb. *2 Curt J. Stoebe of
Harlyn A. Stoebe and Humboldt, plaintiff- Office, Law Stoebe appellant. Johnson, Erb, La- L. Kramer of
James Gibb, P.C., Dodge, defend- tham & Fort ant-appellee. C.J., OXBERGER,
Heard and SNELL SCHLEGEL, JJ. SNELL, Judge.
Plaintiff, Hamilton, defendant, O’Donnell, are both farmers Hum- James County. years, Over the estab- boldt practice exchanging help lished a on practice did their farm work. This wages for involve the each Rather, help. parties kept other’s a spent and accounting mental of time would night get together for and a out dinner of the year. with their wives at the end plain- In asked March defendant help soybeans. plain- tiff to haul While the beans, helping he tiff was load fell top plank from a that was across the of the were stored. bin which beans This plank, long 12 weighing a x 14 feet It approximately pounds. was not place. nailed in Plaintiff had crossed this problem entering plank without bin, attempting fell when to but leave. plaintiff only stepping remembers memory and has no of the onto fall itself. alleged petition, plaintiff
In his plaintiff servant defendant negligent the defendant was failing provide place to work. In to a safe II, alleged plaintiff alternatively Count invitee and that defend- he was business negligent in the maintenance of ant was premises. business evidence, ter appeal. the close of all defend- will not be At reviewed on Wirta Provin, verdict ant moved a directed on numer- nen v. the lack grounds including
ous of sufficient Because of counsel’s failure to ob generate jury question ject evidence on we decline consider of a relationship. propriety issue master-servant appeal. of the admission on granted court a directed verdict *3 Appellant argues also that testimo returned in this issue. a verdict ny deputy of a sheriff pertaining to state Thereafter, of plaintiff favor defendant. ments he overheard should have been ad for on the moved a new trial now mitted under spontaneous the declaration appeal. on asserted Plaintiffs motion was exception to hearsay the rule. Prior to the denied. testimony, objected defense counsel and (1) appeal, plaintiff asserts: trial On the plaintiff counsel for the made an offer of by excluding erred as cer- hearsay, court proof. presence the of jury, Outside the testimony concerning tain the defendant’s Deputy Sheriff Slaikeu testified that at the (2) alleged negligence; defense counsel was scene of the accident he say heard someone to allowed conduct cross-examination of that stepped Hamilton had on a loose plaintiff beyond scope the of the direct board. Slaiken said he could not identify examination; (3) plaintiff prejudiced was person the who made the statement. The by alleged of misconduct defense counsel court reserved ruling testimony repeatedly interrupted plaintiff’s pre- who pending the other introduction of evidence. (4) case; of sentation the the trial court No future effort was made to introduce the by granting erred defendant’s for motion testimony ruling and the excluding court’s directed verdict on of employer-em- issue testimony the became final. (5) ployee relationship; the trial court erred denying by plaintiffs motion for a new reject argument We the that the because verdict was inconsistent testimony should have been admitted under with the evidence the passion and result of spontaneous the gestae declaration or res prejudice. and exception. admissibility of declara part gestae tions as of the res turns on scope Our of er assigned review is whether the statements were made before R.App.P. Iowa ror. there misrepre was time to contrive and Counsel appellant has somewhat sent, i.e., while the nervous excitement of confused the discussing record in the first may supposed the occurrence to domi issue, admissibility the of certain state Muenchow, nate the declarant. v. Bass by made ments defendant and defendant’s 1010, 1014, 923, 146 926 to the plaintiff wife wife of the the at (1966). The officer to identify was unable hospital. Counsel argues that the court who the made statement and thus there is in erred sustaining objection an fol to the showing speaker no by excited lowing statement: the of if they emotion the moment or had
And Jim told even the just me that seen accident. finished bin, cleaning go- out this and he started the Even if statement should been ing out of Larry the bin and [Plaintiff] under gestae exception, admitted the res followed him. stepped And the exclusion constituted harmless error. the—on the loose fell down There were three other admissible state- grain the bin. ments the plaintiff, wife of the another testimony given scene, by plaintiff’s This the witness at and the doctor at the wife, wife, hospital repeating as counsel what the defendant told appellant appears argue, the to ob- them at time of All no the the accident. three jection was testimony. made to this deputy’s coincided with the version Gener- ally, when a party objection makes no fell plaintiff defendant had said that reception the stepped evidence at mat- he on a the loose board.
296 (1) right alleged by employee the exists are: the of se- error
The second lection, will; (2) employ responsi- counsel was al or is that defense appellant bility wages by of the cross-examination for the lowed to conduct (3) scope right discharge of direct exami plaintiff beyond employer; (4) right court has considerable relationship; nation. The trial terminate the determining scope (5) and ex work; party discretion to control the is the In re Estate cross-examination. sought employer tent of to be held as 721, (Iowa 1975). Poulos, 725 229 N.W.2d authority charge responsible only if an of discre abuse We will reverse the work is work or whose benefit only appears if it and then tion is shown performed. Avery v. Harms prejudice resulted. State, (citing Hjerleid Id. at 870 Co., Implement 818, 826, (1940)). Iowa N.W. prejudice. find no such abuse or We test, of this we find that the On basis *4 ground of error assert The third properly motion for a directed verdict was plaintiff the was by appellant is that ed granted. requi- The defendant lacked the alleged misconduct of prejudiced by the plaintiff the needed to site control over interrupted repeatedly defense counsel who employer-employee establish the relation- the case. The plaintiffs presentation of ship. relationship more in the The was has considerable discretion trial court exchange gratuitous help. nature of a of alleged miscon determining the whether power The did not the defendant such, duct, prejudicial. if there was was compel plaintiff him the to work nor to fire its determination not interfere with We will poor for work. The instructions which reasonably it is of such an issue unless given plaintiff generally to the were were abused. clear the discretion has been Old in the form of what work to do rather than 431, Jarvis, 159 N.W.2d
sen v.
grant
how to do it. The
of the motion for a
record,
reading the
we find
After
proper.
directed verdict was
not abuse its discre
that the trial court did
ground alleged
The final
is that the trial
failing
prejudicial
tion in
to find
misconduct
failing
grant
court erred
a new trial
counsel.
part
on the
of the defense
because the verdict was inconsistent with
alleged
error
ground
The fourth
of
evidence,
the
because it was the result of
by granting
the trial court erred
de-
that
passion
prejudice,
the
and because
motion for a directed verdict on
fendant’s
comprehend
respond
failed to
to the real
relationship.
master-servant
the issue of
controversy.
merits of the
plaintiff
In
the
set forth two
petition,
his
recovery:
grounds for
master-servant theo-
repeatedly recog
It has been
theory. At
ry, and
invitee
business
nized that the
court has the inherent
evidence,
grant-
close of the
the trial court
power
grant
if
a new trial
the verdict
ed the defendant’s motion for
directed
justice
does not effect substantial
between
relationship
verdict on the master-servant
14(f)(3).
parties.
R.App.P.
The
Iowa
that there was a lack of
trial court has wide discretion as to the
proof
arrangement
as to an
only
motion for a new
and it is
plaintiff's
services.
clearly
the evidence
shows that
the trial
Supreme
recently
The Iowa
Court most
discretion,
will
court abused its
that we
question
master-servant
discussed the
of
Lorenzen, 166
interfere.
v.
Schall
relationship in the case of
Gabrielson
795,
(Iowa 1969). We have reviewed
(Iowa 1984).
State,
In
[T]he testimony heavy relationship employer plank whether of and there was firmly place. plaintiff fore, it was plaintiff prejudiced by was not had crossed the earlier mis- without error.
hap. sup- There is substantial evidence to findings port jury’s the denial OXBERGER, C.J., joins special con- the motion for a new trial proper. currence. The trial court’s denial of the motion new trial is affirmed.
AFFIRMED.
SNELL, J., SCHLEGEL, J., concurs and C.J.,
and OXBERGER, specially concur. SCHLEGEL, Judge (specially concurring) In re the MARRIAGE Robert OF I would hold that the trial court Marvin ULLERICH and Milicin by granting erred motion for Rochelle Ullerich. directed verdict on the issue of master- relationship. recently servant As as Upon the Petition of Robert Marvin Firgard, case Parks v. Ullerich, Petitioner-Appellee, (Iowa 1968), long ago and as as Reep, case Ganzhorn v. Concerning And *5 498-99, 12 154, 156(1944), the Iowa Supreme recognized Court has that a mas Ullerich, Milicin Rochelle relationship may ter-servant arise when Respondent-Appellant. farmers have a of exchanging custom ser No. 84-910. vices, even when specific there no ar rangement for When pay. such a custom Appeals Court of Iowa. exists, jury may draw the conclusion Feb. right to exercise control of Ganzhom, work exists. See
499,
ers control activities of one
ing gratuitously services “can hardly be
doubted,” person rendering and the such may
services be a servant the one ac services).
cepting the Because the su
preme court has I expressly, never nor do impliedly,
believe overruled the doctrine cases, I
stated those must conclude
trial court granting erred in ver directed
dict on the stated. The evidence issue was sufficient to create a
question. result,
I however, concur in the I because
believe the error was harmless. de- land, duty, possessor
fendant’s as the
his invitee jury. was submitted to the That
duty is any duty less than master’s
his servant. Compare Jury Uniform In-
struction No. 22.3 No. There- with 11.2.