*1 made. Petitioner vacillated between tes-
tifying tеstifying and not and decided not testify. fully sup-
Credible the record
ports findings postcon- those made
viction trial court. We peti- conclude that attorney
tioner’s trial obliga- fulfilled his petitioner
tion to advise on this matter. He petitioner
first conferred with on whether testify
he should in his own defense and properly yielded
thereafter to the informed petitioner made. See Schrier v.
choice that
State,
Petitioner has not shown that he was
deprived right of his constitutional to effec-
tive assistance of counsel at trial. He was
adjudged guilty degree of first murder
only fundamentally after he had received a Consequently,
fair trial. the trial court
properly petitioner’s application denied
postconviction relief.
AFFIRMED. KELLAR, Plaintiff-Appellee,
Donald
v. CO.,
PEOPLES NATURAL GAS A INTERNORTH,
DIVISION OF
INC., Defendant-Appellant. CO.,
PEOPLES NATURAL A GAS DIVI INTERNORTH, INC.,
SION OF
Cross-Petitioner-Appellant, MITCHELL,
David
Cross-Petition.
No. 83-1055. Appeals
Court of of Iowa.
May 1984.
Eugene Davis and Paul E. Horvath of Davis, Grace, Horvath, Harvey, Gonner- Rouwenhorst, Moines, man & Des for de- fendant-appellant. Roger
Kenneth W. Biermacher and A. Whitfield, Musgrave, Selvy, Kelly Witke of Moines, Eddy, & Des for plaintiff-appellee. DONIELSON, P.J., Heard SCHLEGEL, JJ., SNELL and but con- sidered en banc.
DONIELSON, Judge. gas company appeals from ad- judgment in verse this action to recover compensatory punitive damages petition began morning Defendant chal- on the that trial plaintiff’s loss truck. specifications ruling permitting plaintiff negligence. add additional lenges a listing 21, 1981, origi- petition, petition, April an instruction Rellar’s filed amend his negligence, neg- nally specifications an instruction contained seven specifications ligence dam- permitting part: award on defendant’s cross-petition for ages, the denial of its a. Failure exercise reasonable care in contribution, various evi- indemnity or gasline; the maintenance of the part, dentiary rulings. re- We affirm b. Failure warn of the existence of part, verse and remand. gasoline exposed above the ground; a truck Mitchell borrоwed owned David father-in-law, plaintiff Donald Rel- by his protect public c. Failure to and this iar, July furniture in in order to move some Plaintiff from a hazardous instru- maneuvering the truck of 1980. While mentality; yard, struck a riser through a back Mitchell of gasline d. Placement at an unsafe operated gasline by defendant for a natural *4 height ground above the without ade- Gas The riser extend- Peoples Naturаl Co. therefor; quate protections ground two approximately ed feet above properly e. Failure to disconnect the allegedly by tall weeds. and was obscured gasline from previously a unit it had ignited, Leaking natural and the truck served; by fire. destroyed was safety f. Failure to observe various of his Reliar sued defendant for the loss regulations respect codes and to truck, alleging negligence recklessness and placement the of and maintenance of riser, in locating maintaining and the in gaslines; natural af- failing properly disconnect the riser to g. gasline Failure to check the connec- service, customer had discontinued ter the upon tion so as to disconnect avoid provide warning signs or failing in and ignition thereof. рrotect from the public the barricades 22, 1983, trial, February day the before On liability Additional theories of strict riser. application made to the court to Reliar ipsa loquitur were later dismissed and res petition by adding following amend his court. Defendant filed a cross- by the trial negligence: of specifications Mitchell, alleging that petition against in which Failure to maintain the аrea h. negligent driving had caused Mitchell’s line or located so as riser was asking indemnity and or contribu- accident protect property make safe and in Reliar was from Mitchell the event tion right- land and of others when said judgment against defendant. awarded a of-way being put was to a foreseea- against filed a counterclaim Mitchell then of said line proximity use ble for loss of his furniture which defendant riser; in the truck. care in i. Failure to exercise reasonable jury to a while Plaintiff’s case was tried location, installation, construction, tried to the cross-petition was defendant’s maintenance, repair inspection, and of $10,502 plaintiff court. The awarded surrounding line or and riser $10,000 in actual and area, being that needed said care in- defеndant damages. The court denied po- dangerous commensurate with the and demnity Mitchell or contribution from tentialities associated with natural Mitchell his counterclaim. $360 awarded on gas; appealed has these Defendant from alley and sur- j. keep Failure to awards. rounding right-of-way reasonably danger; free I. safe and maintain inspect k. Failure and/or first contends the trial court Defendant surrounding line or and by permitting to amend his riser Reliar erred debris, fact, application to amend. In de- keep free from Kellar’s area weeds, attorney himself stated that he overgrowth, or other obstruc- fendant’s implicit tion; “prepared felt to address the duties suggested by allegations these of that are mark, or inform oth- l. Failure to warn negligencе.” presents This issue no presence of ers of the existence ground for reversal. riser; the line or creating potential m. Failure to avoid II. danger from collision with the for next that the trial Defendant claims vehicle; by a line or riser submitting court erred in Instruction No. require carry and/or out n. Failure to jury. This instruction contained 13 to the design changes in the location and/or allegations negligence all of the of con the line or riser so as to avoid original pe and amended tained Kellar’s condition; dangerous creating a specifi except titions as set forth above locate the line or riser so o. Failure to (e) (g) relating disconnecting cations the use of the as to not interfere with gasline. that this Defendant contends alley. overlapping contained and re instruction trial, hearing morning on the petitive specifications negligence After a which unduly emphasized court allowed the amendments. confused the negligence. Kellar’s theories of With one alleges the new however, exception, argument specifications negligence constitute “a ap not consider on raised belоw. We do direction to the law approach, new a new *5 peal objections jury instructions which suit,” not have been and therefore should presented not to the trial court. were date. The trial court allowed at that late Center, City v. 272 Franken Sioux of determining in discretion has considerable 422, (Iowa 1978). N.W.2d 426 pleadings, amendment of whether to allow interfere with that decision and we will preserve Defendant did error on showing that the court only upon a clear respect to his claim that this issue with Brown, 249 its discretion. Moser v. abused 2 No. subparagraphs and 10 of Instruction (Iowa 1977); 612, N.W.2d 615 see Iowa Subparagraph 2 repetitive. 13 con were the rule and 88. Amendments are R.Civ.P. allegation tained Kellar’s that defendant they should not be exception, not the but negligent fаiling in “to warn of the responsive pleading has after a allowed gas exposed line or riser existence of the substantially change the they filed if been ground,” subparagraph 10 while above Lauver, 242 v. N.W.2d mark, issues. Ackerman referred to defendant’s “failure to 342, (Iowa 1976). 345 or inform others of the existence or warn presence of the line or riser.” The similari the trial court do not bеlieve We ty subparagraphs can these two between allowing amend in abused its discretion denied, we do not believe that not be but to introduce ments. Kellar not seek did emphasize theory they unduly Kellar’s so recovery, having al any new theories of negligence that reversible- error has of ipsa ready urged liability strict and res Hubbell, v. been committed. See Clarke loquitur negligеnce in addition to as 306, 316, 905, 86 N.W.2d 911 249 Iowa Rather, recovery. the amend grounds for (1957). amplify little more than appear ments to do negligence Defendant’s also contains original allega brief Kellar’s seven event, following enigmatic rather statement any In we believe record tions. that, any supporting argument: “With conclusion without the trial court’s sustains embellishing point, that out we submit discovery proceedings which had due to authority of there is no for the submission place, defendant had ade already taken 5, 6, 8, 9, 11 Instruc subparagraphs of the nature of the additional quate notice of would granting tion No. 13.” Such embellishment negligence justify claims of
693 degree negligence if it is de- between “mere” such helpful, have been for unclear support justify general is no as would and reck fendant means there factual their submission or that lead to in the record to warrant lessness willfulness could damages. In legal concept basis therefor. The punitive or that there is no of reck event, such an any Vipond do not consider we lessness was discussed v. Jer nothing 650, 598, of “argument” here consists which 260 Iowa gensen, N.W.2d any (1967): than assertion without more a bald 600-01 Hilton, 247 Iowa elaboration. Stewart means, proceeding no It with care cou- (1956); 988, 996, pled disregard consequences. with for § 1324(1),pp. 326- Appeal Error C.J.S. & The acts manifest a disre- must heedless (1958). gard rights for or of indifference apparent in the danger others face of or III. operator so be be obvious should trial asserts that Defendant also it, cognizant especially of when thе con- instructing it court erred sequences of such actions are such that con- punitive damages. He could award injury probability is than a an a rather no evidence of reckless- tends there was possibility. may Recklessness include ness, wantonness, gross negligence wantonness, but if the con- willfulness support an award of would which negligence may more duct is than it damages. agrеe. We being reckless without willful and wan- required ton. have We argu dispose Kellar’s We first persistent conduct to show no course preserved that error not on ment disregard consequences. care with evidence, At of the defend issue. the close required, we would be it were so proposed objected to various attorney ant’s If allowing an recklessness “the pаrt: stated in jury instructions and inference (emphasis every negligent act. (sic) objection the Instruction 9 first is to added) I respect gross negligence. don’t any there is evidence whatsoever— believe of this case The factual circumstances carry jury’s under the issue this case to believe that defend- could lead ” It is that defendant’s attor .... obvious against negligent protecting in not ant was referring misspoke Instruction 9 ney possible presented by the hazard *6 the refer only 20 is one since Instruction believe, however, that We do not riser. punitive damages for ring to Kellar’s claim respect to this omissions with defendant’s gross negligence. and the need to show “a persistent can deemed one riser Although objection could have been the disregard with for of сonduct ... course the clearly completely, stated more finding lead consequences” that could to a that the court was record indicates trial consequent liability for of recklessness and fully cognizant of defendant’s contention in- damages. there was punitive Because just there insufficient evidence that was justify instructing sufficient punitive damages ify the of the submission damаges, trial punitive the jury on the had the jury and therefore issue the re- doing in so. We therefore erred court opportunity alleged the error. to correct $10,000 punitive damages award verse Co., N.W.2d Pose v. Roosevelt Hotel 208 Kellar’s favor. in (Iowa 19, 1973). 25 IV. Punitive allowable are that Defendant further contends showing wrongful or upon adequate “an cross-pe denying in trial court erred its or illegal conduct committed continued from indemnity or contribution plain tition for disregard reckless the willful or that argues Clark, N.W.2d David Mitchell. rights.” tiffs’ Earl (which assuming negligent it (Iowa 1974). court it was 487, supreme The even denies), only secondary negligence was its that there is a difference has made it clear passive while Mitchell had committed had changed during been the interven- primary negligenсe. or active The trial ing years. only It was to demonstrate negligent court concluded that Mitchell was those facts that this exhibit was admitted. in that he should have seen the riser before primary i.e., Defendant’s objection, the dia- it, running into but denied defendant’s gram scale, was not clearly drawn to was indemnity claim for or contribution indicated on the card itself and was also negligenсe, Mitchell its as deter- because brought testimony. out in Defendant was by jury, mined warranted dam- not prejudiced evidence, by this and the Mitchell’s, ages as later while determined court was well within its discretion in ad- court, argu- did not. Defendant’s mitting it as showing relevant in the loca- premised jury ment is on its claim that the tion of the gasline. main See State v. should not have been allowed to consider Fuhrmann, (Iowa 257 N.W.2d punitive damages issue. Because we 1977). The court was also within its discre- III concluded division that submission of overruling tion in request defendant’s for a error, that issue was we must reverse the jury since, view of the accident site in the court’s denial of defendant’s claim in- words, trip court’s “... to the site to demnity against or contribution Mitchell premises view would not substantially and remand so that the сourt can determine jury’s ability enhance the to understand indemnity whether defendant is entitled to apply the evidence.” Humphrey v. or contribution. Happy, (Iowa 569-70 1969).
V. Defendant claims the trial court erred in Finally, agree we with Kellar evidentiary rulings. several It first com- that the court did not commit reversible plains proper that there was not a founda- in admitting error into evidence а federal expert tion testimony for a fire chief’s regulation concerning prevention of ac the riser was hazardous. Defendant also gasline ignition. cidental Defendant claims asserts that error occurred the admis- it improper jury specu allow map sion of a of the accident scene which meaning late as to the interpretation allegedly incоmplete and not drawn to regulation. Initially, we note that de scale, copy in the admission aof of an fendant’s failure any to cite authorities in allegedly regulation, irrelevant federal support argument may of this be deemed the trial court’s refusal to let the waiver of R.App.P. the issue. Iowa view the accident scene. We find no error. 14(a)(3). if merits, Even we consider the First, testimony Cook, of Gene we believe ground defendant’s fears are chief, city pur fire was elicited for the less. The give was not called on to pose stating his belief as to whether the legal interpretation regulation; of the rath riser in posed this case a fire hazard and er, the evidence was merely introduced *7 proper not toas the location of risеrs in show the what defendant’s own wit general. trial court did The not abuse its ness testified should have been taken into determining discretion in that Cook was guarding against consideration in fire haz competent regarding testify possible the ards in and gaslines. around defendant’s existence of such a fire hazard. Wadle v. Jones, (Iowa 510, 1981). 312 515 N.W.2d regula Defendant also claims the erroneously tion was admittеd because its Nor error was there the “proper interpretation clearly ... establish court’s admission of a 1931 block card de nothing es that it had any to do with fact picting alley the gasline question. presented or issue in the case at Defendant does bar.” not contest that the card accurately below; gas This issue was not raised indicated the location of the we there line, main and service and that that location fore do not consider it here. See Dickman
695 459, words, safety Transport, Inc., garding the for the of oth- v. Truck 1974). (Iowa I a ers.” believe trial court is entitled 465 specificity being given more than this in punitive damages award is re- Plaintiffs exception making. the notice of counsel is limit- ease is for the The remanded versed. Center, City v. 272 Seе Franken Sioux determining defend- purpose of whether ed 422, (Iowa 1978); N.W.2d 426 Pose v. Roo- indemnity or contribution ant is entitled to (Iowa Co., 19, Hotel sevelt N.W.2d respects, In all the from Mitchell. other 1973); (1981). Iowa R.Civ.P. 196 affirmed. judgment is majority a matter of law The holds as PART, IN IN REVERSED AFFIRMED damages. that there is no issue of PART, REMANDED. AND light judged This issue must be in the most favorable submission. See Gunnison concur, Judges except SNELL All 1974). (Iowa Torrey, 216 N.W.2d SCHLEGEL, JJ., who dissent. presеnted gas was Evidence that defendant up company grew did not cut weeds SNELL, (dissenting). Judge the riser around when it not located on was majority’s respectfully I dissent from the company-owned property, it alert nor did the trial in Division III that conclusion property the owner to this fact. The riser by submitting puni- issue of erred the court painted gray by a was and was not marked the I also dissent damages jury. tive warning sign. or The installation barricade finding IV and of error Division by hired site was located the installer correctly hold that trial court would company. gas evidence was Some in- cross-petition for the defendant’s denied “Opera- company’s that the own presented demnity from defendant or contribution was in its loca- tions Manual” not followed The should be Mitchell. trial cоurt David procedures to safety of the riser and tion all issues. on affirmed After mobile home which be followed. issue, removed, er- nei- punitive damage it serviced was the riser was Regarding ade- preserved. away Even if an nor cut off. ror was not ther taken made, objection present had it would a quate been The evidence was sufficient to proper to Defendant’s gas compa- overrule. question have been as to whether complete objection proposed instruc- rights indifferent of others ny was to the was: tion the assess- reckless so that or otherwise legally pos- punitive damages was ment of order, might a little out of but It be bit Supreme Court has stated: The Iowa sible. objection the instruction the first is to I respect gross negligence. don’t damages may awarded exemplary any there is evidence whatsoever believe maliciously, but defendant acts where this case under carry to establish—to may defend- be inferred where malice issue, for the disregard I jury’s would illegal improper; where act is ant’s safety of others. such as to illegal of the act is the nature feeling toward any inference of negative damages is exemplary on The instruction injured, is in fact consist- person It directs the not number 9. number complete on the indifference ent with whether defendant jury to consider defendant, exemplary liability for part of De- wanton, negligent. grossly reckless malicious- upon is not based at- objection the court’s directed fendant’s based, is rath- of the defendant but ness 9, respecting instruction number tention to er, separate princi- upon the substantive “gross negligence,” and did the words *8 ought illegal improper acts ple that punitive dam- exemplary or mention either deterred the exaction cloudy Following this statement ages. is a above the an defendant sums over ends with of evidence which on lack damage he caused. disre- actual has comment on and irrelevant obscure Syester Banta, 628-29, 257 Iowa cases where the parties situations of the (1965) (citation omit- equal, are for equality among persons ted). whose situations are equal equi- is not § table.” C.J.S. Contribution (1939).
On question of indemnity, the trial court although concluded that Mitchell was SCHLEGEL, J., negligent, joins company was not this enti- dissent. indemnity tled to or contribution because found its culpability such as to punitive damages.
warrant I believe the supports finding. “[T]he
principle equity on which right
contribution is founded apply can only