*1 ap- find it useful might the court petitioner. represent the point counsel court, line the trial at bar case Court, supra be- v. District
with Waldon per- counsel was appointment of
lieved As circumstances. under
missible herein opinion filed
pointed in the out make very are unusual
claimed facts desirable.
appointment most of counsel only to modify case our Waldon
I would vesting in the trial
the extent of in such appointing counsel
discretion of appoint- make such
case where the facts post convic-
ment desirable. If additional legis- it is for the
tions are to be furnished provide.
lature to so particular facts in this
Because of the and re- agree
case it should be reversed I
manded.
GARFIELD, J., and C. LARSON
SNELL, JJ., join special concur-
rence. OLDSEN,
Charles B. Executor of the Estate Boyd Appellee, Oldsen, Deceased, C. Jarvis,
Gary JARVIS and Bernard Appellants.
No.
Supreme Court Iowa. 11, 1968.
June
432 nearly
struck decedent when he was half way Decedent’s doctor across street. and im- happened the accident to witness “hypo” mediately A went his aid. relief of milligrams for 100 of demerol An pain administered at the scene. was ad- ambulance called and decedent was was City at hospital mitted to in Sac at “hypo” given A o’clock. second the first thought 10:10 when doctor starting Decedent one was to wear off. at died 10:24.
X-rays taken after death revealed a mas- pelvis fracture sive left from top through pelvis down the lower and a right hip fracture of the and knee. Death inju- came a result shock due to bleeding. and internal ries Decedent com- plained pain of a lot and of numbness legs; repeated in both over Moines, Theodore Duffield, T. Des boy, “Boy, and over bad.” oh so hurts appellants. He was conscious until a few moments be- McCullough, L. City, Thomas Sac fore horri- his death and knew he had been ' appellee. bly injured. Decedent carpenter was a retired GARFIELD, Chief Justice. cabinet maker. His income tax returns for years gave occupation 1961 and later his This is a law action to recover from the He country retired. had come to this from operator and owner automobile, of an Germany in age at the of 26. He negligently causing the plaintiff’s death of They adopted married about 1921. decedent, pedestrian a in a crosswalk. De- only child, their son, age of 18 appealed fendants have He months. lived in California about the against them. years. last 15 through Decedent sent him Three errors are assigned: (1) Claimed College engi- State and he became an $15,000; excessiveness of the verdict neer. Decedent’s wife died about three (2) grant failure to a mistrial because years before he did. alleged improper jury argument by plain- Decedent had a deformed left elbow counsel; tiff’s and (3) allowing the chief by a caused broken arm in a sustained fall of police testify as to location and inguinal and an hernia. Otherwise he was length of skid marks when, said, it is in good health for one age. of his Before testimony was hearsay. based on The first he retired worker, awas hard did his of these upon is relied most and we consid- work thrifty. well and was He was well er it first. liked. I. The fatal injury occurred in Sac City August 27, 1966 about p. 8:35 m. tax His returns last five calendar decedent, when age 83, years was walking north show income from his work. in a crosswalk across Main (U. reported Street S. income was from rentals. Highway 20). A car driven defendant He also received about month social Gary Jarvis, age 18, with security. the consent of In 1954 purchased owner, Gary’s Jarvis, father Bernard old fire station for which was re- apartments impartial fair and upon based into offices below and discretion
modeled evidence; pres- (3) remod- did as much of the Decedent consideration above. a new the estate decedent or value of eling work as he could. ent worth expected system reasonably at a cost of was installed water his result of lived in one of saved accumulated as a Decedent $1364.51. if looked apartments efforts from the date of death after wife died own *3 making repairs, term of natural building, minor he had lived out the after the life; furnace, sweeping. (4) and reasonable interest on watching and paid expenses, sum for not exceed- funeral Mr. Old- Before his death she and wife’s proper, is ing what reasonable and in units in a lived of four living sen one compelled pay time the estate to such was remodeled older home. He build- sold this expenses in of date of advance the normal $11,000 ing after his wife died around death. paid mortgage which he off on building. to the fire In addition station say the total The instruction went on building that lot decedent owned a vacant e., mentioned, recovery i. for the items four adopted at The re- son valued $1500. services, and pain hospital medical and fire modeled and he valued station contents suffering, death decedent and funeral $15,000. at Decedent had limited to the amount expenses, died, bank when at an old car valued by the evidence. shown and life insurance. $100 $1000 in- objection No was made Decedent owed a note bank for therefore as the and stand structions hospital or His bill was $91.- $1000 $1500. Hurtig Bjork, 258 law of the case. 70, his doctor bill and the bill for $60 155, 157-158, 64, and N.W.2d funeral and burial was Social $1102.08. The on measure of citations. instruction Security paid about of this $200 $250 follows Instruc- plaintiff’s recovery closely amount. last 3.10, 3.09, pain suffering, and tions on and Mortality The Commissioner’s Standard death, Jury Instructions of Uniform average expectancy Tables show the life of prepared by a of Iowa State committee person aged years. is83 4.89 many Bar Association and accords our decisions. II. The was instructed that for plaintiff recover, upon the burden was ruling on defendants’ The trial court’s him by preponderance to establish “Most this: motion for trial contains (1) evidence that: defendant driver was seriously that contended is negligent particular by charged some given The has considera- excessive. court plaintiff; negligence (2) such was requiring a remittitur. thought to ble proximate cause of the accident and result- judgment $15,000 and evidence ing death damage; and (3) the estate of accumulations loss to estate suffered pecuniary some damage and the support high an amount. so extent thereof. is, however, evidence There considerable by excruciating pain recovery
On the measure of suffered following during period he lived (1) was it could the fair short instructed allow: extremely hospi- the accident. This reasonable value of medical and evidence required by evidence; (2) strong. Any attempt as service tal as shown money damages equate with suf- fairly law of amount reasona- such as would imperfect and fering is bly compensate pain and bound to for decedent’s danger. fraught with a amount of suffering adding such cannot certain amount reflection this de- by any Upon exact mathematical considerable be measured or standard interfere.” jury’s must rest in the sound termines should not but pends many upon times held we will facts and circumstances of
We case; hence, size with a interfere verdict because its the verdict and lacking support al it is evidential in another where case similar character is not though may passion preju or a controlling criterion, there but at best an im- 1384, perfect analogy.” Am.Jur.2d, Lindeman, Damages, dice. Allen v. 259 Iowa cita page 148 N.W.2d 620-621 and section tions; Ronfeldt, Iowa, In re Estate 837, 847.
N.W.2d think an award We pain suffering of decedent during time the short he survived acci true, is of as the course dent is much more than fair considera instructed, and suf stated, tion supports. of the evidence As by any exact fering cannot measured or physician decedent’s (who had examined mathematical standard and rest *4 only days him previously) ten witnessed upon sound of the based discretion accident, the came to his immediate aid impartial fair of the and consideration evi and administered a “hypo” for relief of dence. pain. “hypo” given Another at the hospital III. The trial conclusion ines- court’s is the thought when doctor the first capable pecuniary that the evidence of was wearing loss off. complained Defendant to the estate of accumulations from dece- of legs in numbness his as as well severe support pain dent’s injury. own efforts does such Although the “hy $15,000. only pos” an amount as In fact the left decedent with a of pain, lot theory upheld which may —together on this verdict be with constant attention of is pain that the evidence suffering of and doctor at the hospital have —must during helped the two hours materially. decedent survived injury supports an award this item of hospital and doctor were com- bills damage equals part a considerable of paratively for both. In- recovery. nominal— total Defendants think $1000 terest cost funeral and buri- is highest pain amount allowable suffering al, disregarding and Security here. Plaintiff on other fact Social pain hand thinks a fair award for and paid suf- it, years of for five $200 $250 fering $10,- would be between and $6000 be would If decedent were to outlive $275. average 83, expectancy person of a $55 year each added added should be computing damage. in this of Each side cites item $275 a few decisions as Aside from these a fair supporting reading its small and al- view. A of them sums lowance many pain suffering, and subject rest of others on affords persuasive proof represent present verdict must then wisdom of the fa worth or miliar value of the estate decedent opinions statement in our that a comparison reasonably expected would save verdicts is little value in accumulate from determining his own efforts between partic whether in an award the time his ular death and the end of his case is excessive. Each case natural life. according evaluated pro to the evidence in duced it. McCalla, Henneman v. 260 The evidence discloses no reasonable 60, Iowa 459; 148 Hurtig N.W.2d v. probability any added would have Bjork, supra, 155, 162-163, 258 Iowa 138 considerable amount to his estate from his N.W.2d 67 and citations.
own if this accident efforts unfortunate had not his is fair taken life. There no “The amount may prop- erly any particular awarded basis to case de- conclude decedent would have
435 lived, necessarily ap- somewhat next efforts his earned more from Buesch, lived, proximation. Railsback in the last than years, he five had stated, 920 and re- he N.W.2d live. As years he did five stated, And, damages for during citations. ported income from such source suffering cannot be measured re- occupation his years gave those formula. Nev- exact or mathematical from rentals. income was tired. His ertheless, upon the conclude whole case we have been decedent would Of course $15,000 clearly above what the verdict while years, five had he another lived justifies, held ex- and must be died. record years just five before earning cessive. his The reasonable deduction increase, decline,
power rather than remittitur is filed within 30 Unless a advancing years. opinion all days filing from' the this inter- the verdict in excess of could tells us Plaintiff’s counsel from the date of the verdict and est costs could have lived on found decedent granted. trial If remitti- will be such Security together a month Social filed, judgment is so be entered tur shall re- apartment with free rental on the reduced amount. Any assumption that modeled fire station. live in his nothing the owner costs may be inferred from what is IV. As property Taxes on own is erroneous. said, just error in ei- we find no reversible *5 in to building from increased $335.36 assigned ther the errors. of other two and electrici- gas 1965. In 1964 $490.86 ty for the of building cost a total by $1000. improper jury argument The claim of 'year just Gross income it that was from to the that he resorted plaintiff’s counsel is $1100, year, with a net includ- loss for the argument, in vio- Rule” so-called “Golden ing depreciation $161.38, of of pronouncement $1247. in Russell v. lation of this Co., Chicago, R.I. & P.R. jury also the have We are told could 70 A.L.R.2d 86 N.W.2d in-pocket the found income from decedent’s 934: building could have fire station rentals appeals jurors place “Direct them- to to produced month and could per he the par- selves in one the situation of of year have saved and accumulated $1000 ties, they to would allow such Savings years. for another ten and accu- if position, wish in the same or consider to not be from such source would
mulations willing accept what would be to any But in from decedent’s own efforts. injuries compensation for similar are con- scarcely within the event the statement (Citations) courts.” demned the in- possibility. largest realm net any last building the come from closing argument the During to years five lived was $528.17 plaintiff’s statement here counsel made this depreciation the suggested my If that in substance: “It’s been $20,000 suggestion ridic- the or was- year for that were added to claimed something effect, that but let ulous or year profit first figure, the net you question: ask counsel me this Would following total $689.55. you I or for the defendant or his client or just year profit $132.97, net was depreciation. amount same deducted point At this defendants’ counsel inter- rupted opposing course the award in case of counsel and in the absence Of reasonably present objected worth of accumulations was said what expected decedent, gross rules, highly had was a violation of said, hearsay and which, it based on inflammatory. was prejudicial Defendants’ testimony of Officer contrary which was counsel then moved a mistrial car, one who, police made Bruscher then court denied. Counsel asked there. It is two skid marks that use of the sets of opposing counsel be admonished assignment argument mis- sufficient answer to Rule” was “Golden supporting references it reveal improper. conduct counsel record Plaintiff’s anything improper yet; no error. he had denied said appeared the court be mov- remarked he ing argument; Rule” toward “Golden Further, testimony referred
plaintiff’s granted counsel asked was prejudicial cannot be deemed to defen permission argument; to finish no fur- the issue of the driver’s bore on dants. objection argument ther was made to the negligence. no testi Defendants offered until the filed motion for trial was mony except a lines from the driver’s few after returned. Nor does was deposition speed the effect his when plaintiff’s the record show what counsel away lengths two car first saw decedent finishing argument. said in Defen- per or a little was about more 25 miles dants’ ask that counsel did not (That speed hour. was limit improper any- disregard admonished to place accident.) physi Decedent’s thing closing argument said opinion speed cian was driver’s plaintiff. per was about 40 miles hour. can little There doubt the driver’s many
We held times the negligence caused the accident. Two trial court has discretion in considerable negligence the four charges of fail- were alleged determining misconduct whether proper ure to maintain a counsel, such, lookout and fail- if prejudicial. there yield ure right-of-way pedestri- to a will not interfere with We its determina an in a crosswalk. The driver testified question tion of such a unless it reasona *6 objection deposition without in his bly offered clear the has abused. discretion been by plaintiff pleaded guilty that he to 638, 652, Wright, Iowa Castner v. 256 127 charge. second 583, 591, 885, N.W.2d 128 N.W.2d and ci tations; Scott, 1285, 256 Mead v. Iowa If, as defendants’ counsel the objected, 1290, 641, 130 N.W.2d 644 and citations. police chief gave testimony contrary to officer, that of the other it would benefit ground find holding We insufficient for defendants than prejudicial rather the trial court its abused discretion here. them. only ruling deny made was to a experienced mistrial. The defendants’ fact As stated at the end of III Division counsel did not see fit to have a record hereof, if a remittitur is 30 filed within opponent’s the argu- made of rest of days filing from the opinion of this all object ment anything nor then said $10,000, the verdict in excess of judgment seems to indicate there was further amount, shall be the reduced entered on ground objection. shown, So far as with interest the date of the argument the trial court the entire heard and costs. If such remittitur is so evidently there was felt no clear resort filed, granted. a new trial be will argument. the Rule” so-called “Golden
Affirmed on condition. assigned The remaining
V. error is that concur, J., except BECKER, All police give chief of allowed the tes- Justices timony concerning skid marks at the scene who dissents.
437 the BECKER, damages is often nation of Justice. —which court jury’s task. The Iowa crux of the highest I said in dissent in dissent. What was that remits has indicated it N.W. 155, 138 the evidence sustain.” verdict which will Hurtig v. Iowa Bjork, 258 consti applies 2d 62 here. But this case careful note that longer We are no complete all criteria
tutes abandonment of jury. province we do not invade except judges’ ordering remittiturs This, least, integrity; merit of at subjective opinion the amount that own province we do invade may justified by the evidence. Our for reality we become this case. proposition mer that adherence to really doing is here jury. this court province What judges will not invade the of the line of cases. clearly reversing long Iowa is is abandoned. by quotation easily This demonstrated is Law Re- Apartments, 48 Iowa Bellevue quote To note from Primus v. 347, 353, 1055, 1065, 1066,44 applying Iowa N.W.2d 655, 656, “The 649, view prece- 565: have said 25 A.L.R.2d “We usually standard evidence the substantial of the little value because dents are of ques- damage recognize that careful to impondera- circumstances varying peculiarly for the fact question tion is on its each case must turn bles and that must be great that care to decide and Ry. Dunham v. Des Moines own facts. province invade the exercised so as not to 578, Co., N.W.2d Moreover, emphasized jury. 583, 584, reducing points that out must cautious not to substi- judges a new trial for exces- granting award or jury, judgment tute their substituting its verdict the court is sive recognize that no two question that of on fact exactly the same with no two cases will be ‘ *** ap- award jury, where the A close juries returning the same verdict. clearly not pears be unconscionable or decisions reveals that examination of Iowa judg- should the record, warranted not follow court articulates but does be dis- jury, ment in such matters these controls. In most cases where turbed.’ excessive, allegedly the court are Corpora- essentially “DeToskey Transport the facts evidence reviews v. Ruan record, decides what shown tion, 45, 48, 40 N.W.2d 241 Iowa justify, amount such record will and enters rule, same A.L.R.2d enunciates judgment accordingly. striking its of this supporting decisions cites various *7 stated frequently a court which has City of quotes Collins v. court and unliquidated damages damages and 332, Bluffs, Iowa Council subject and to math- suffering are not 200, 205, that the law Am.Rep. a statement computation compen- ematical or cannot be imposes duty to assess jury by money sated a a judgment can review fitness to of its damages consideration ‘cold record’ where evidence is often con- it: discharge flicting proper and determine the dollar “ recovery amount of which evidence are ‘Neither in nor courts fact law support.” page it; will At author discharge they 654 the are prepared better provides said: “The charged Iowa Constitution that deli- not under the law with trial, protection right jury thé and indirectly duty, cate and not assume should supreme court has been careful rec- when, according judg- their its exercise ognize that province of the jury must their ments, accord verdicts do not Nonetheless, not province be invaded. this in the al- views exact amount of * * * freely seems to have been invaded when a verdict ought lowed. In no case subsequently makes the determi- be flagrantly disturbed unless it is so ex- presumption raise a cessive as to prejudice passion, the result or un- BROOKS, Hazel I. on her own behalf and a s influence, Brooks, due the result and not Next Friend Keith Michael Terry Brooks, Tonya Brooks, Lea David judgment honest and the exercise of the ” Brooks, and Kevin Dean children minor jury.’ can lawful discretion of the How Brooks, Appellee Plaintiff and Ronald squared in this case be what said Cross-Appellant, cases, holdings? all such
those Shouldn’t myriad, are he overruled? We Raymond ENGEL, Cold Wave now state we need no such standards. C. d/b/a Tavern, Appellant Cross-Appellee. by By rationalization— evolution—and No. 52972. clearly I, we contravene Article section 9 by jury denying our own constitution a Supreme Court of Iowa. trial. In a case like it is incorrect to this 11, 1968. June say plaintiff may trial is have a new Rehearing Sept. 4, Denied 1968. possibility so desires. There that would make a new trial evidence appeal and new more beneficial. cheaper, simply and better to these record,
matters submitted to us on sans by a
decision trier of the fact. jury help represent
If is there to community;
combined reality, touchstone with we should simply judgment.
use it reduce its If jury
this brought had in a verdict $5000 plaintiff appealed additur, for an $10,000?
would we have raised it to Walker,
DeMoss v. 48 N.
W.2d we refused to order an additur brought
where back a wrongful in a death action the es
tate year of 77 old woman. point, other
One if record does not happens
sustain a award what right
defendant’s trial with this
solution? He has had no fix dam-
ages $10,000. say pay Yet we plaintiff
that amount if elects it. to take Review,
See 48 Iowa Law day
In this values it does not changing
seem incongruous fix a for the wrongful value death of a being regardless age.
human his or her persuasive
Such a view is even more acute
where Assessment involved. alleviating hypoder- us of the effect of injections
mic clearly of demerol seems un-
wise.
I would affirm.