*1 LEMKE, Administratrix Sadie A. Lemke, De- of Otto Estate B. Appellant, ceased, Pechumer, Leslie
David MUELLER Appellees.
No. 53172.
Supreme of Iowa. Court
April *2 Templeton, Garner,
G. W. Pap- William pas, City, Mason appellant. Buck, Britt, Erwin L. appellees. MASON, Justice.
This law damages action for brought by plaintiff Lemke, A. Sadie as adminis- tratrix husband, estate her Otto Lemke, against B. defendants, David Muel- ler Pechumer, and Leslie as the result of a rural intersection collision between the automobile, Lemke by Brown, driven Merle gravel and a by Pechumer, truck owned driven Injuries Mueller. sustained in this accident caused Otto Lemke’s death. Pursuant to trial a verdict jury for defend- ants was returned appeals judgment thereon. Plaintiff assigns four upon errors she relies for reversal. The court erred in (1) sustaining defendants’ motion to suppress evidence that upon the highway which the Lemke car traveling at the time of the collision was custom and usage established as a through highway; (2) suppressing evidence to the acts show County of the Hancock Super- Board of visors, county engineer and road main- department tenance in maintaining the highway as a through highway, hold- manner such road can be- come a byis formal reso- lution of the board and maintenance of thereon; signs (3) striking the testimony of Brown as to his state of mind approached the intersection where occurred; the collision and (4) giving in- struction telling highway, known and referred to as “Old 18”, is not a “through” or “stop” highway. until and did not see the Lemke car and Merle tion Lemke July Otto traveling they moment collided or near trip a business Brown His truck Highway 18. center intersection. struck on Old from Britt west just the Lemke car in front of the riding passenger Lemke side At an inter- front door and overturned on south automobile. front seat of his Lemke car landed road about of the intersection. The secondary a gravel section with *3 col- at corner of the cornfield the southwest Britt the automobile west of two miles from coming truck the Lemke was thrown intersection. gravel Pechumer’s lided with 18”, injuries. fatal incurred Highway automobile and north. “Old the from the Britt between formerly Highway U. S. petition plaintiff charged Mueller her In road. On Wesley a hard-surfaced and failing (a) proximate negligence in to with the April it was removed from lookout, proper his truck keep a have (b) system and returned to primary state road control, yield right- proper (c) the under secondary sys- County road the Hancock stop yield right-of- the of-way (d) and or Supervisors of tem. The Hancock Board through highway, to way at the a entrance any adopt take did not a resolution or 321.321, Codes, 1962, contrary to section a designate road as action formal to 1966. did apparently noth- through highway, change. the public apprise to the petition as plaintiff’s In answer and to by offer attempted Plaintiff to show complete alleged a defense defendants proof was maintained highway that this neg- plaintiff’s and Brown were decedent board, by the en- through highway a the (1) keep proper a look- ligent failing to men, that gineer, and maintenance road out, speed the ato (2) reduce their vehicle’s protected stop the a public considered approach- proper reasonable and rate when highway, and that and residents officials (3) highways, ing an intersection two area, plain- including the the driver de- right-of-way the directional to vehicle, Brown, a believed to be tiff’s and their (4) fendants’ vehicle vehi- the this acci- through date of alleged Defendants also cle under control. dent. negligence of his driver the Lemke and proximate was a cause of the acci- Brown stop at sign there was no At time plaintiff’s damages. dent and from the gravel entrance road Mueller, in the north. a newcomer vicini- jury plain- The court submitted to ty, stop sign testified he had never seen specifications negligence, first tiff’s two point, Highway at that not did know Old control, e., and i. failure lookout and through 18 was considered specifications. all ob- and defendants’ No prior it a crossed few times to except jections instructions, instruc- to the the accident. objec- appear only the tions 7 and and argued to No. are here. tions he going Brown testified between per approached and miles hour as sup- trial moved to Prior to defendants and not this intersection did reduce at the press Highway that Old speed, and he looked left but to by cus- place of this accident was time and did see until im- defendants’ truck action the coun- tom, usage, or informal mediately impact. before There was ty supervisors board testimony a truck the of Pechumer’s size wholly incompe- would because same approaching the north the gravel from They also tent, irrelevant immaterial. and by road could seen for 1000feet driver these interrogation to alleged even coming of an automobile from the east on defendants, re- prejudice would matters Old rulings admonition gardless of to exercise asked “the court proceeding Mueller testified he was south the court and speed and discretion power as he this intersec- its inherent slow to came
«63 to right-of-way under the the trial be entitled orderly, fair, conduct of just general applying direction statute plaintiff’s counsel to direct roads. The reference intersection non-favored with before witness respect therefore, in the jury, could find itself usage with the custom position having decedent both plaintiff’s upon which right-of-way having nor highway, defendant traveling being testimony of mem- different statutes.” attempt to establish county en- supervisors, bers of board motion defendants’ resistance to with refer- patrolman highway' gineer, “I do suppress, counsel stated: agreement action informal ence Court, plain- apprise as far want signs respect stop hy said board concerned, think custom tiff while we re- road was place after said remaining in important, think the real we system, or direc- primary moved supervisors here is the board of issue what or maintenance county engineer tions *4 actually did in county engineer and the of said replacement to respect the men with with this road. The fact connection necessary thereafter.” as signs, might be constantly signs place in and stop suppress “to further moved Defendants by through a them as road was considered * * custom, usage or public and highway was held out to the a through as said to use road intention generally through highway, as a is nub by any purposes or means highway for I do feel here. So while our contention law determi- That under Iowa whatsoever. something and to do par- highway, and of the status of a nation it, think that I don’t want Court to highway, is a ticularly matter are important thing going the most we is deter- fact to be and not matter of law on, stronger.” feel the we other by jury.” mined satisfied did not We are the court and upon the ruling motion sup sustaining err in defendants’ motion to the court thereto said: resistance press usage for of custom and to jury “In attempting submit establishing the status or character as highway issue of a its and character of of this date insolu- through highway impossible accident. That situation is created. able here, so es- traveling on favored road “through” A in this I. be by custom usage, tablished would jurisdiction cannot be established us entitled the benefit of the rules custom, only by formal age or but action highways, pertaining such favored road legislatively designated authorities in specifically in an instruction this case prescribed. the manner respect section With under Code 321.321. Fifty-seventh Assembly The General defendant, hand, jury enacted 1957 what now section 313.2 knowledge would exist as to Code, provides part: the custom.” “Any portion primary sys- road said court then reasoned: tem eliminated reconstruction or reloca- sign [stop] had not “As [indicated] part tion shall revert become month, and, place for at least a been in * * * secondary system, local road * * * perhaps Consequently, five months. as jury finding provides: have make 306.2(5) would Section “The term * * * so knowledge secondary system’ defendant had whether ‘local road shall required under section all secondary as to include those roads which are or, now, no may be, if the found he had or 321.321 not hereafter included custom, knowledge such then he would system.” in the farm-to-market road un- secondary enacted regulation ordinance or that the “No provides Section 306.1 5,4, or of section 321.- farm- der subsections system shall be subdivided into road roads, signs giving until secondary 236 shall be effective to-market roads and local regulations are notice of such traffic farm-to-market local 306.2(4) and section states high- secondary posted upon at the entrances or include those main roads shall * * *.” way part thereof affected designated as farm- have been roads which provide. (Emphasis supplied) may law to-market roads as the appear has been It does not road ac that official It is well settled designated as a farm-to-market road. authorities, including boards of local tion may be estab- secondary A local legal session supervisors, must be pro- lished they res may act on such ordinances, 321.236(6). visions of section individuals, regulations olutions, or the action body where records of “Through every high- A highway” means County Young duly preserved. entrances portion thereof 464-465, Hawk, of Black from intersect- to which vehicular traffic Structural 925; Modern Steel N.W. required ing highways stop before en- Co., Iowa Van Buren Co. v. stop signs tering crossing and when Mahaska Gunn v. 102 N.W. provided chapter are erected County, Iowa 136 N.W. 321.1(53). Code. Section Bank, Andrew v. Stuart Sav. *5 the indicates Section 321.236 of Code 570, 575, 807, 808; Mulhall Iowa 215 N.W. authorities, including how local boards of 1143, Pfannkuch, 1139, 221 N. v. 206 Iowa supervisors, may designate or establish Lasher, 833, 834; Iowa Beers v. 209 W. It “through” highway in their localities. 821, 1158, 1163, 823, cited with 229 N.W. states: Twp. approval in District of Soldier School Moeller, Iowa County Crawford v. power “Local authorities shall have no 43, 45; County Emmet 73 N.W.2d enact, enforce, any or maintain ordin- Dally, 216 Iowa ex rel. v. ance, any way Johnston regulation rule or in in con- v. Greusel 168-169, N.W. with, contrary flict or inconsistent 750-751, County, Iowa O'Brien provisions chapter, the of this and no such 853, 854-855; 273 N.W. Coe v. Board ordinance, regulation rule or said local Iowa N.W. Sup’rs, authorities heretofore hereafter enacted or 153-154; County, and Morrow Harrison v. effect, shall have force however or 725, 739-740, 64 N.W.2d provisions the chapter of this shall not prevent deemed to local authorities with is nothing Since there to show respect highways streets and under their steps by the formal have ever been taken jurisdiction and within the ex- reasonable ** High supervisors board of establish “Old police power ercise of the from: in Hancock through highway as a 18” Designating any “6. highway as a un- County, it retained the we are satisfied requiring that all ve- secondary road preferred status a local or stop right-of-way hicles the before at the time of accident. this entering or crossing designat- same the County, supra, In v. O’Brien Greusel ing any stop intersection as a intersection defendants, an by plaintiff claimed cited requiring stop all at one or vehicles ”* * himself defend- oral contract between more entrances to such intersections. must be county.
ant The court stated there authorization, directed, approval Although showing not specifically board, by it appears by ratification contract the designation such must be or hoard, be- regulation duly adopted by acting dinance or local while in session county provides: authorities. Section 321.237 fore the can be bound. Hawk, collision, su County Black the vehicle Young approaching In the other phy against right-of-way. from the shall pra, a was directed have the verdict foregoing from the sought The rule is modified at sician who to recover highways ren county for certain medical services otherwise as hereinafter stat- township chapter.” at re ed the dered on behalf of township quest of several members of Our authorizing statutes local author- inter alia The court held hoard of health. ities designate “through” highways by or- act as a unit and in that a board must necessary dinance or recognize resolution prescribed. The determination manner certainty determining party which has individually is not the deter the members protection right-of-way rule. the hoard. mination of trial court was correct in apprehending the v. Van Modern Co. Steel Structural which confusion would result if custom- Co., 617, 102 N. supra, 126 Iowa at Buren ary right-of-way compete could with a stat- damages county claimed W. utory one, if especially parties one of the bridge of a breach based on contractor’s custom, appears were not aware The court stated construction contract. to be true in the instant case. delivery paper signing and by supervisors bridge company two Blackmore, Hoover Mun.Ct., Ohio the act cannot be said to have been Ohio Law Abst. con- 177, N.E.2d by approved action was ever board. No siders appar- similar matter under statutes act of the “That ently the board session. identical Iowa’s. The issue there body, public even individual members of was whether the sign erection of stop majority of its by though concurred county engineer adoption without members, upon binding is not official or authorizing county resolution they represent, is municipality which deprive commissioners would a driver who (Cita for doubt debate. too well settled stop sign, ran the been knocked tions)” down sight, protection out of *6 statute granting right-of-way. him the The supra, County, Mahaska In Gunn v. court held that without a board resolution plaintiff alleged agreement an stop sign change did not right-of- supervisors fines and collect board of way obey rule and the driver who failed to affirmed county. This court costs due the stop sign statutory still had right- doing so, In petition. dismissal of the Iowa, p. at page of-way. stated 536 155 932 at acceptance “The 136 N.W.: Mylnar Hall, 739, v. 55 Wash.2d 350 P.2d by signed the members proposition was 440, involved intersectional collision individually, supervisors
the board of ** party a urged where a that road be clas- ap- relating thereto nothing [but] sified as facto board, high- de arterial (through) proceedings of the pears in the * * as so the rule requiring avoid that it was *. In circumstances these right-of-way. The court re- acceptance that inferred to be jected his contention the road was a as acting body in session the members de highway facto arterial based on the supervisors rather than indi- a board of * * stop signs fact had been erected the in- vidually, tersection county commissioners but In the reso absence board later, apparently by removed vandals. had the lution here David Mueller court at page stated 442 of 350 P.2d: “Van provides: right-of-way. Section 321.319 Tassel road was not highway’ an ‘arterial approaching on are as that 46.04.030, two vehicles term is defined in “Where RCW that their any public highway so county street since Pierce passed had never danger of paths intersect and there formal designating will resolution is it as such.” 866 552, 911, 915-916, and 214 Iowa 243 N.W. man, noted both Ohio It should be 1034, Peterson, 554; 1031, 245 where Florke v. Iowa cases situations
Washington involved Court, 372, 373; Cunningham re- 65 stop been N.W.2d v. sign was invisible or 292, 298; 654, 664, here. 248 82 situation Iowa N.W.2d This was also the moved. 899, 905, Sheffert, relative duties Iowa 96 pass Kohler v. 250 need not on We X pres- Refrig. in fact parties stop sign is Kroblin where N.W.2d 234, 229, Ledvina, by for- not authorized Press Inc. 256 Iowa ent visible 133, governing authorities. Cf. 127 N.W.2d 136. mal action of the Blackmore, supra, N.E.2d 477. Hoover v. “ * * * [Wjhere becomes ma operation conclude determination terial to show the mental We secondary person influ of a local reasons or character ‘or ascertain the status or generally action ences which have induced certain court, part, fact testi person his such law for the not one conduct on usage fy directly such testi jury, though as to custom and even thereto in mony may partake degree irrelevant and on issue here was some [Citing nature authori competent. conclusion.’ 290, Krabill, 292, Colburn v. 232 Iowa ties]” assignment of er- his II. Under third 154, Halligan N.W.2d See also 155. ror, testimony to his Brown’s striking 1277, Exch., Lone Tree Fmrs. 230 Iowa inter- approached as he state mind 556; 551, N.W. v. Stroh Williams occurred, plain- section where collision Electric, Inc., Plumbing & 250 Iowa admissible tiff contends this evidence 465; 750, 754, 94 N.W.2d 82 A.L.R.2d using Brown was bearing whether Allen, In re Estate of safety. The court’s care for his own due 11; Guiter, N.W.2d Brown v. consider evi- permit refusal 900; re Iowa N.W.2d recognizing dence of custom Malli, Iowa, 149 N.W.2d Estate evi- Highway 18 Old Evidence, 159; Conrad, Modern Trial It dently gave rise to this assertion. 145; Wigmore, section Third Evidence, driver, Brown, decedent and conceded Ed., Evidence section and 31A C.J.S. joint in a venture engaged § imputable to would be negligence Brown’s expressed thought The same in 1 decedent. Jones Evidence, Ed., Fifth section 200: specifi- alleged as the third Defendant nn rule, general applicable “It is in civil decedent of his affirmative defense cation *7 alike, and criminal yield the direc- cases sustained negligent failing was weight when- great authority, to Code sec- of that contrary right-of-way tional motive, ever of a cause intention or belief proximate and this was tion 321.319 person issue, testimony is in injuries. his This was one direct fatal person party such he is a jury. whether specifications four submitted not, suit or is relevant to issue of such first contention We consider motive, belief, notwithstanding intent or specification. this as directed to that interest tend to his diminish testimony.” credit be accorded of violation exception With the meeting requiring section vehicles 321.298 course, assume, principles These that way by half traveled give each other to investigated. intent is material to be right, constitutes turning which merely “It that negligence, violation remains to noted prima facie whatever, reg testimony, sort of statutes or legal without excuse of other motive, to the fact negligence person’s intent is per or ulating the law assump- of course Kisling Thier- receivable on the se or matter of law. v.
867 Usages Am.Jur.2d, 21 per- b, is a Customs motive § or tion the intent fact Usages, 15. substantive section under proved missible to be assumption This case. in the law involved Peterson, supra, Florke v. 245 Iowa at admissibility all conditions * * * 1037-1038, 376, at was an N.W.2d action particular. this sort and of injuries resulting from automobile- Hence, any reason of substantive if for truck collision which occurred when de- or motive is intent person’s law fendant at “T” turned left an unmarked in- by such all, provable is not provable at just attempting tersection was supra, Evidence, testimony.” Wigmore, left, pass defendant’s violation of Hickie, Quoting Browne 721. page at statutory against passing ban near an N.W, 276, 278, in the intersection. support. body the text opinion supporting contains this legal without ex violation Since statement: negligence as cuse section 321.319 fact recognize “The that courts there law, that Brown be matter may be a ‘legal excuse’ for statute viola- lieved Old quite tion is permitting different from usage recognized as a violator invoke the law common rule of belief and irrelevant. His was immaterial reasonable care or care rea- customary or usual under as to what prudent sonably man exercise would jus did not excuse or similar circumstances like circumstances. statutory standard which tify violation of per negligence se. Supreme “The Ohio Court has made the distinction: comply the failure to ‘Since Smelting Refin & This American * * * safety statute constitutes Wusich, P.2d 92 Ariz. ing Co. v. * * * se, negligence per party guilty 368-369, position: supports our cannot compliance by excuse himself from “ showing attempted that “he to do did ** * of a custom or [E]vidence any reasonably what prudent person would it is of- where practice is not admissible * * * have done under similar cir- excusing justi- fered for the ** legal cumstances.” A excuse fying which violates conduct something must be make would it im- * * * standard, unless vio- [Citations] * * possible comply statute with the *.’ considered lation of the statute is Co., Harvey Bush v. Transfer 146 Ohio negligence, only prima facie evidence of St. 67 N.E.2d Simko v. * * Obviously, vio- where *. [Citations] Miller, 133 Ohio St. N.E.2d se, per negligence evi- lation of a statute is violations of sanctioning of a custom dence * * * “‘Evidence due care does ques- irrelevant the statute would be furnish justification an excuse or negligence.” of the existence tion the negligence presumed proof to arise on of violation of the ordinance.’ Gallichotte statement found general This v. California Building Mutual & Loan Cox, Okl., P.2d 651: Smith *8 Ass’n, 4 Cal.App.2d 41 P.2d 351.” “ * * * * * * settled law is [I]t Plaintiff Langner Caviness, cites * ** states, that, a majority in a Iowa N.W.2d 172 A.L.R. express the usage repugnant to custom support to position. her Because of the void, when- provisions a statute is heavy places reliance she this opinion on between custom ever there is conflict we consider it in detail. statutory stat- regulation the usage, and a control; utory regulation must Plaintiffs truck and [Citations] that of defendant ** Caviness, also Customs See driven Woolums, defendant C.J.S. speed, roadway high at a at- hauling rock on a said rate engaged in crushed were They tempting approach- col- to said county road-surfacing project. beat defendant’s pass truck place said narrow or to a dirt road. Plaintiff’s to daylight lided in on therein; yield quarry, that said failure to so north the the empty going truck to was way negligence contrib- right feet The Cavi- was which up long. a hill about 1100 to truck, rock, resulting uted the going collision and the dam- with ness loaded age They by plaintiff.” about south the hill. collided down sustained top hill. feet the the south of quote opinion: We from the in the of the road portion traveled the above strike “Plaintiff’s motion to feet wide. vicinity was general sustained, stated allegations, which However, point of collision at about excuse for defense or they constitute no washed grade 4 feet west 2[4 statutory care re- to exercise failure The dis- 4 feet. about depth to a out operation quired of defendants the washout to side of from the east tance their contend truck. Defendants variously road the east shoulder of properly allegations bear on stricken collision feet. The to 19 given as from plaintiff’s contrib- freedom from issue of the plaintiff’s (east) side occurred They that cus- utory negligence. concede place. out the washed opposite almost justify or excuse tom or will not ex- with charged driver Each * * * Therefore, negligent no act. right- yield the speed failure to cessive allega- is placed reliance stricken of-way. alleged tions as an excuse Woolums’ negligence. appeal complained that Upon defendants phrased) were: The stricken truckers der such circumstances as swer trial allegations of pertaining court had stricken allegations (slightly a custom right-of-way from shown there. their between para- un- an- provision will not be trol. custom which there is such “It [Citations] is [*] generally conflict, conflicts * * * Accordingly, held, however, that the statute must con- enforced. with Where it usually contrary that a held custom that defendant “Defendants further state may statute ordinance not be shown to Woolums, down hill with a traveling excuse a violation thereof. [Citations] truck, place narrow approaching a loaded roadway and meet the in said about to “ by plaintiff empty traveling driven truck * * * stated, As do not defendants hill, upon a up the relied well established upon they contend custom which rely existing custom between truckers long could excuse negligence charged public working upon
when works against argue only may Woolums it upon character de- considered on the issue free- working, fendant then Woolums dom contributory negligence. to plaintiff known the exercise of known, reasonable should care have been pleaded “Plaintiff asserts the empty that a driver of truck would not because, shown for way yield right said, the driver conflicts section 321. Code, nar- 1946, 5024.02, loaded truck when about meet in Code, 1939, which place row or defective * requires persons in meeting vehicles each * * failed observe other public on the give half long said established custom to way by traveled right. turning to the A ap- loaded truck the when requirement violation of prima facie *9 proaching place contrary narrow said negligence. [Citing author- * * thereto portion drove into said narrow *. ities]
g69 duty alleged tiff’s a common law pleaded can- breach of here the custom think “We in view of the known nullify the to exercise due care supersede or to not be invoked constituting that custom between truckers as not follow it does But above statute. recovery. It negligence barring his is not in de- considered be such custom cannot authority urged proposition here from plaintiff was free terming whether contributory lation of “If because << [*] [*] a [*] common negligence of his law duty], knowledge [based upon vio- that a a matter nance, justify violation custom violation thereof. law, may contrary of which be shown to statute negligence to or excuse ordi- as This distinction between that apparent plain is a vital to pleaded it was custom plaintiff’s position here. Al- yield case and going1 tiff that was ncit' to Woolums though was not of custom asserted properly find road, jury could half truck, excusing justifying to be admissible as stopped his not plaintiff should have only violation of a which constituted by reason his statute any statute but because of prima negligence, facie evidence of care. obligation * * use due [Citations] custom, language opinion supports actually plaintiff if pleaded *. The position it, taken here : rele we have known was knew should upon vant material however, held, generally “It ordinary required care whether statutory with which conflicts custom stop, speed or take some reduce * * provision -will not be enforced. *. injury. precaution If de to have avoided Accordingly, usually it is held a custom meeting fendant violated the statute on contrary statutory not ordinance vehicles, thereby plaintiff was not excused a violation be shown to excuse thereof. ordinary part” care exercising on his (Emphasis supplied). «* [*] pleaded “We think the custom can here prop- plaintiff has We believe failed to supersede or nullify invoked to
erly opinion interpret Langner above statute cit. loc. 321.298].” [section recognize applicable it as not here. Iowa, 778-779 of 423-424 N.W. 2d. charged This driver was with decedent’s negli- violating which made him a statute Here violation of a decedent’s statute
gent Langner law. de- as matter of which is a matter negligence as of law charged violating with fendants were sought by showing to be excused prima only statute facie which made them following failing custom negligent. They did contend evidence statutory right-of-way. The effect usage was admissible ex- of custom or doing recognize so be to custom and would cuse to this violation the statute justify usage as a legal excuse violation aof though they but asserted that even per statute negligence which is se. prima negligent by reason of such facie negligent violation Plaintiff’s against contention as directed reason of his failure common law specifications negligence of decedent’s comply empty the custom an truck based on violations cannot yielding right-of-way to a loaded one sustained. did not err in The court refus- about meet narrow or defective evidence of irrele- place highway. Langner’s negligence in vant specifications. on those upon based vio- no claimed lation regulating of a statute the law the Admissibility III. bearing of custom as road. law duties decedent’s common
The decision holds evidence of custom lookout remains to be and control con- plain- bearing was admissible sidered. *10 stated, actually road. de in conection this the court submitted did
As contend he indicated in proper look Counsel does not failure to maintain a cedent’s hearing pretrial on the any manner at to have out and his driver’s failure that he specifications of motion intended to offer vehicle under control as course, purpose Lookout, of custom for the limited of its negligence. decedent’s bearing on common and con- duty. assume at law lookout is a law We common trol. also point specification was control duty a common law rather than
treated as As a witness Brown was asked: Di statutory, since what we said dispose plaintiff’s con vision II would Brown, “Q. July on as Mr. control. tention as approached you this intersection where the occurred, your collision what was state American Langner Smelt- Caviness v. Well, thought of mind? A. I I had the Wusich, supra, both Refining Co. ing & v. right way.” when the use of custom evidence support altering other than purposes for offered Defendant’s to strike the motion answer e., statute, bearing as i. the effect of it ground given on the before counsel How- duty of due care. the common law object objection had a chance to and an aids ever, of these neither cases immaterial, incompetent it wholly as position here. irrelevant was sustained and made stated, hearing As at the motion proof covering offer of the same matter. suppress prior trial defend- Even then did not indicate evi- suppress any “the Court to evi- ants moved dence of Brown’s state of mind or intent respect showing of cus- dence with was offered for limited of its tom, usage the use of said or intention of bearing on his obligation use due care. pur- through highway as a road poses by any The means whatsoever.” II, supra, We Divisions I and held plaintiff’s coun- motion was sustained and that evidence of custom was not admissible sel no indication whatever than gave purposes establishing High- for the Old he intended to offer evidence of way 18 a through highway anas ex- purpose. limited justification cuse or for violation of a statute.
We set out record: Court, apprise far “I want do Error does not lie in the ex concerned, plaintiff is while we think clusion of evidence claimed on an inadmiss usage important, think custom and is we ible ground though might even have been the real issue here what the board admissible been claimed on another supervisors county engineer actually ground. and different v. Rocka Johnson did in connection with this road. fact Corporation, Bus 145 Conn. stop signs constantly place A.2d State, Cotney 710. See also v. that the considered them as a Ala. 26 So.2d re out to and was held Estate, Smead’s Cal. 28 P.2d public generally through highway, 349; Hairgrove City Jacksonville, the nub of our here. while contention So 366 Ill. 8 N.E.2d and Hud got I do feel custom and has some- Smith, son Tex.Civ.App., 391 S.W.2d it, thing don’t to do with I want the Court 441, 447. objection Where the has been important think that thing most sustained and the offeror contends that on, going we are strong- we feel the other is evidence which is pur inadmissible for the er.” pose previously indicated him It other” is clear reference “the bearing admissible as purposes, on other county engineer duty what board ahas to so state.
«71 materiality ap making is not clear to the court his reason for “Where must party offering it disclose offer. The parent, the court is entitled to be ad- 190, Estate, Repp’s 241 Iowa vised of Re this fact ruling it. In In before on the of- Further, fer. quote with opponent we N.W.2d [195], 40 would be in no position to proper Hartshorn make a approval objection from Votaw & unless Diehl, N.W. 62 Iowa follows: ‘The true 676, [680] N.W. rule, 757, we 18 he knew the request limited instruction limiting purpose of the the use offer, evidence, that, apparent upon the think, admitted, it is if when pur- pose of the witness its asked admission.” face of Trial § C.J.S. 82 c introduced contains a sought to be similar what the evidence statement in sub- material, is, stance. that it is this is sufficient. apparent, then But when this is not Since did not indicate in
party seeking the evidence to introduce the trial court evidence of custom was required expects prove, to state what he ” being offered as bearing on decedent’s ob materiality appear.’ make its thus ligation to use care, due the court com Abild Light Iowa Power and Co. v. Con mitted no error in disallowing the evidence Co., Iowa, 313. struction N.W.2d when its admissibility was challenged. supporting Recent of this court decisions statement, exhibits, although involving this recognize We may be Assn., Norwegian are Olson v. Mutual Ins. clearly purpose yet inadmissible for one 140 N.W.2d may same and ad Inc., Englund Younker Brothers, missible for some other legitimate purpose. 48, 57-58, Iowa N.W.2d However, after objections defendant’s been sustained never made known is well rule stated Roach v. Snedi to the trial legitimate court the purpose gar, 76 429-430: S.D. N.W.2d now claimed admissibilty. for its “ general principle ‘The is that the offer IV. From what we have said in Divi- judged exclusively specific must be its sion I we must conclude there is no merit regarded princi- contents as whole. The complaint of the court’s in- ple consequences: leads to several If (1) struction 7. As a matter appear- of law it fact evidentiary desired be offered ed this road was not a through highway. irrelevant, apparently is in itself or other- In view of many references dependent wise ad- on other facts for its road trial, Old during missibility, offer must contain state- we think this justified instruction was ment specific purpose, all the or of was properly given. admissibility.’ necessary facts Ed., Wigmore Evidence, 3d Vol. § Affirmed. 17(b), p. Trial, Am.Jur., 319. See also 53 102,p. 91. § GARFIELD, J., C. MOORE, “ * ** STUART RAWLINGS, JJ., duty concur. ap- [I]t pellants to make known the trial court they the limited for which claimed LARSON, SNELL, BECKER and Le- testimony the excluded To admissible. GRAND, JJ., dissent. require
hold otherwise would be court to cast about for which reasons for LARSON, (dissenting). Justice the same was offered. That not be should Rather, the burden of the court. when I respectfully dissent. apparently evidence that is inadmissible is purpose, propon- offered a limited I agree with the reasoning and conclu- ent of the evidence should have the burden sion reached the majority in Division I. purposes. require litigant relevant To majority’s announce agree
I
also
explain
that,
intent is
to the court
reasons he be-
where
ment in Division II
person
lieves
evidence is material and relevant
material,
of a
operation
the mental
may
strange
under such- conditions would be
induces his actions or conduct
testify
rule
indeed.
of evidence
person
shown and such
*12
in
which have
the reasons or influences
Only
specifications of
two of the five
Generally,
duced those actions or conduct.
at bar
negligence alleged
the case
would
be received
evidence as to custom
of mental
fall within
rule that evidence
when the state
motor
cases
vehicle accident
im-
attitude and belief could be found
v.
of
of the driver is material.
mind
Jesse
material.
1002,1016,
Co., 248 Iowa
Wemer & Wemer
Caviness,
89;
82,
Langner
of negli-
82
v.
The defendants’ specifications
N.W.2d
423,
774,
421,
778,
keep
gence
N.W.2d
included failure to
238 Iowa
28
cited
A.L.R.
and authorities
and failure to have the car under
172
lookout
therein;
Refining
statutorily
Smelting
control,
American
&
de-
neither of which
364;
Wusich, Ariz.
P.2d
all
of de-
Co.
375
fined. The court submitted
five
v.
Co.,
Ariz.
specifications,
Alires v. Southern Pacific
fendants’
included
913;
Watson,
statutory
Ariz.
regulations
P.2d
321.319and
State
in sections
175;
Knight,
App.
relating
436 P.2d
Mitchell v.
to failure to
di-
321.288
Alaska,
and
re-
tions as to its these other issues not have submitted should been *14 jury. SNELL, BECKER LeGRAND, JJ., join in this dissent. majority
The admits such evidence is bearing admissible as the common law
duty to maintain a lookout
control. How can be said the
had to do than call the court’s atten- more materiality relevancy
tion Clearly,
this evidence under these issues ? this was done in the case at bar. STATE of Iowa ex rel. FULTON, Jack M. County Attorney, County, Linn majority several cites cases to sus- Iowa, Appellee, position tain its that the court was not here properly grounds advised as the for ad- SCHEETZ, Oscar Jr., Appellant. William mitting this state-of-mind evidence. These assumption premised upon cases are all No. 53068. They materiality apparent. Supreme Court of Iowa. applicable are not here. April 8, 1969. abundantly
I am satisfied under this
record that trial court was or the able of the material
should have' been aware of this evidence should objections defendants’ there-
overruled the statutory specifi- submitting
to. When
cation of failure to found in section
321.319, cautionary given should have
instruction the effect that usage and be considered custom could not noncompliance
to excuse with those statute Fry, Cir.,
requirements. Dugan N.J., Goodwin,
34 F.2d Tobin v.