*1 1324 significance residuary only have no if
would the clause referred In part pattern paragraph them. the latter 7 same is provided. if Testator pay said his estate was not sufficient “to * the, *.* out .all of legacies the above set out in full each then legacies be cut” proportionately. added.) (Emphasis
Throughout paragraph spoke legacies testator of all just not those one the “above” paragraphs. may by be that appellants testator’s intent as claimed is
but that not what he said in will. his As commented trial court apparently intelligent he was man. He lived nearly years executing four copy after will. He had a in his possession. There no claim was unfamiliar with its he provisions. During much executing after the time his will at a he lived hotel near the attorney office of the who drew the If will. correctly :express will did not his intent he had ample córrectipn. opportunity time and If did not see fit to make a it is change not for tous do so after he is dead.
Appellants’ good counsel has furnished us a and in- brief genious argument distinguishing authorities but the obstacles pathway in his are too difficult to overcome. are
Costs taxed to the estate.
The ease is—Affirmed.
All Justices concur. Lamaak, appellee, v. Harold as administrator Brown, Orville Roger Ogren, estate of Elmer deceased, appellant.
No. 52257. *2 January appellant. Lake, for Storm Connell, of &
Hamilton L. Thomas Mc- City, and Lake Willis, of L. Bernard appellee. City, for of Sac Cullough, judgment final appealed has from J. Defendant Snell, guest an case. automobile presented points of the limited nature of Because argued appeal only on evidence nec- review of the brief essary. pre-
During evening January 22, without age, arrangement, young men, all of met a Wall Lake four They They Lamaak, cafe. were friends. were Orville decedent, Roger Ogren, was killed in Elmer Bruening night, accident and Allan later LaVern They had some Brotherson. “a while there. After beer two” *3 stayed they They time a in drove to tavern Breda. there about couple mugs They one hour and had “a of each beer drink.” Pigtail Lounge next in went the Denison. Plaintiff and de- fendant’s decedent each had “a or of whiskey. shot two” The “stayed They other on Pigtail Lounge, two beer.” left the drove place around a They while and then went to a called Inn. Slick’s each mug had “a of they beer.” At or 12:30 about a.m. started for leaving plaintiff, home. After Denison riding the bank ear, seat of slept the most of the For time. some time before and at the time of the accident asleep. was Throughout evening the Ogren, decedent, defendant’s was driv- ing. of passengers None the Ogren testified that was intoxicated. driving His complaint anyone was without from shortly until before the accident when was driving fast and Mr. Brother- son him asked to “slow reaching down.” Before their destina- tion car went out of control, went the ditch and over- occupants turned. The were thrown some distance. There was ample speed. evidence of excessive
Ogren injuries from sustained which he soon died. Plaintiff severely injured, Bruening and was Brotherson were less severe- ly.injured. brought
Plaintiff against action the administrator Ogren’s alleging estate and recklessness intoxication. Defendant affirmatively pleaded and intoxication and recklessness denied the risk. assumption of instruc- of the court’s copy furnished' have not been
We during argu- advised any. were thereto, if We exceptions tions or intoxi- recklessness, jury to the court submitted that the ment Except by plaintiff. assumption of risk and of the driver cation no error risk assumption of submitting propriety of as to the a substantial jury returned thereto. The is claimed relative plaintiff. verdict for refused the court error because
I. Defendant claims theory acceptance on the direct a for defendant verdict assumption of the risk. defense
Assumption risk is an affirmative Beekman, it. Reeves v. upon establish burden is the defendant to sub issue was 95. Here the 263, 270, 256 Iowa 127 N.W.2d To jury adverse to defendant. mitted to the with a result appear that this defense position sustain it must Jensen, 241 Iowa Augusta was established as a matter of law. 701, 42 383. N.W.2d appear did not Ogren testimony to the effect that was Ogren that knew was no evidence intoxicated. There sufficient Plaintiff admits there was evidence intoxicated. as a it cannot hold established jury question but we generate Inc., Mills, Booth matter of law. v. General 49 N.W.2d appreciation knowledge and
It is well established assumption of of the defense danger essential 79, and 383, 52 Driftmier, 243 Iowa risk. Bohnsack v. therein. authorities reviewed *4 or showing either being no clear recklessness
There beverages consumed, except before intoxication, the amount to as a matter of law sleep, he cannot be held went nothing a risk he knew about. have assumed Beekman, factually comparable This is not Reeves v. case Christopherson 648, 258 140 supra, Christensen, Iowa v. Here assumption of risk established. 146, we held N.W.2d where any testimony refuting knowledge risk. direct there was exceptional cases This not one of those where affirma- 1328 in of the one favor law, be decided may, as a matter of
tive issue has the burden. reported. jury was not of the II. The voir dire examination in jury counsel defendant’s Midway in the selection of plaintiff’s that for was claimed chambers moved a mistrial. any any in insur- interest jurors as to inquired counsel some in- you won’t let commented, “Then company and then ance you in in this case.” you will do surance bother what doing so the motion. In court com- overruled the court and did not present, questions he had been heard the mented that questions gone feel that the had too far. repeatedly in dire held that latitude voir
We have
trial
within the sound discretion of the
court should
examination
permitted. Proper inquiry as to
with
be
connection
insurance
companies
approved.
Martin,
has been
185 Iowa
Mortrude v.
1319,
17;
172
213
239
Wilson,
1251,
N.W.
Raines v.
Iowa
36;
Borg,
104;
Kaufman v.
214
242
N.W.
Iowa
N.W.
McMillin,
Montaniek v.
There is record us indicating before of dis- abuse ruling. cretion or error the court’s previous III. With no legitimate notice and with no appearing reason counsel, Hamilton, Mr. was called plaintiff. as a for witness He was if asked he had a statement signed by Allan Brotherson. He said he did have. He was asked produce it and did Objections so. were made and in chambers defendant for a moved argu mistrial. Extensive ment chambers followed. The court sustained defendant’s objections procedure to the but overruled the motion for mis trial prejudice appeared. as no Brotherson,
Mr. whose written sought statement was party a not the lawsuit. He had passenger .to been a in the ear. He was available as a witness but had yet not testified. He later plaintiff. testified Plaintiff’s counsel had consulted with and presumably Mr. Brotherson knew what he say would but *5 discovery procedure relative to any had not followed not at that time was The statement statements witnesses. procedure unneces- purpose. was any Counsel’s admissible improper. justification and cause, without sary, dangerous to 1227, 136 N.W.2d Wagner Larson, See affirmatively ap- subsequently it Except for the fact that peared prejudice no we would reverse. that there was by plaintiff.
Allan as a witness Brotherson was later called part questioned about his As a of his cross-examination he was into written statement. The statement was then offered evidence Any mystery its and was as to contents defendant received. trying any impression and that defendant was removed something conceal was erased. argues premise strategy of trial
Defendant that from the psychology appre- and was forced to offer the statement. We position prejudice ciate find to defend- but can no basically ant’s ease. We have examined the statement. is a recital of and It is events facts not controverted. less favorable testimony than Brotherson’s from the witness stand. statement ends with these words: “he was not reckless that The (sic) driving nite (sic) but was fast.” note that defendant also
We introduced into evidence plaintiff’s written Bruening. statement of witness Wagner The situation Larson, here not the same as supra, mystery uncertainty where and remained and we found prejudice.
While we are reluctant to reverse this case the trial tactics employed by plaintiff’s counsel are not viewed with favor.. argues
IV. Defendant that the cumulative effect errors throughout the trial denied him fair trial. We have reviewed the entire agree record before us and with the trial court that neither judgment notwithstanding the nor verdict a new trial is required. ease is—Affirmed. Rawlings except
All Justices Mason, JJ., concur dissent. Being- agree the conclusions with unable
Rawlings, J. III, respectfully I dissent. reached Division Wagner, Iowa Larson, this see In connection I would and remand reverse new trial. joins in J., this dissent.
Mason, Anthony Newby, minor, by legal guardian and next friend et al., plaintiffs-petitioners,
Hersal District Golliday, Woodbury George Paradise, Court County, Hon.
Judge, defendant-respondent. No. 52321.