*1 367 require- and contract ac cumstances both tort its when the meets the evidence Vojak DeWaay Muhr, supra; ments tions. v. v. hereafter set out. 106; Iowa, 100, Berg
Jensen, 161 v. N.W.2d We now announce rule that cases Company, 237 Iowa Kucharo Construction us, profits such as the one before loss 569; 493, Sargent 561, 21 v. 478, N.W.2d may part par- be shown as innocent 152, Sons, 155, 186 Frank Cram & 194 Iowa ty’s damages requirements if three are ful- 917, 916, and in those cases. citations N.W. filled: (1) damages Such must have been within why this good see same no reason the contemplation parties of the litigation involv apply rule should not made; time the lease was fact most ing breach of a farm lease. In bearing on this it does. As courts hold (2) damages Such must be natural 650; 9 subject 31 Review see Iowa Law breach; and direct result of the and Restatement, 66, 80; Law Review Drake (3) damages Such must established be Annotations, 331; Contracts, section 104 certainty with may reasonable not be Annotations, A.L.R.2d 161(b); A.L.R. 88 upon speculation conjecture. based 526, Bain, 116 Colo. 1041(h); Carlson v. We do not feel that this rule conflicts Stiers, 912; 909, 182 P.2d Martin v. U.S. with our holdings Bogle, in Adair su- v. 166; 163, N.C., Dist.Ct., F.Supp. 165 Buck pra, Dilly Paynsville Company, v. Land 358; 354, ley Mo.App., Coe, v. 385 S.W.2d supra, they may, but the extent that it Nelson, 482, 685, v. Ala. 31 So.2d Nelson 249 hereby overruled, are as is Groff v. Craw- 400, 687; Poppen Wadleigh, v. 235 Minn. ford, supra. 75, 78; Payne, v. Williamson 652, 598; v. Ga.App. Smith 118 S.E. question mitigation No was raised or 193; 377, County, 98 39 P.2d Fergus Mont. considered in this matter. Madewell, 140, Fuqua Tenn.App. v. II For reasons set in Division 133, 134; Damon, 56 Barfield v. S.W.2d this case is reversed and remanded for a 1037; 1032, Stewart v. 515, N.M. P.2d trial. new 609, 610. Murphy, 95 Kan. 148 P. 421, remanded. Reversed and jurisdictions illustrative those As All concur. Justices view, contrary McHargue v. holding a see Scott, (although Ky., 305 S.W.2d exception held
this case was to be an Brown, App. Mullins 87 Ohio
rule), and 94 N.E.2d 578. WILSON, Appellee, Ralph proof only objection real raised damages in these decisions —and of such they agree which them —is others with TRANSPORTATION JEFFERSON CO. speculative and conjectural and are too Bunce, Appellants. Oran H. upon which jury that the has sound basis no No. 53104. do not see the dollar loss. We assess any in this kind of why this is more true Supreme Court Iowa. profits than other where loss case 10, 1968. Dec. damage cannot may be shown. When certainty” “reasonable shown with be “conjecture must resort
when profits speculation,” the issue loss not, jury. course, given to be
should not, nor this rule should
But sound to, prof- prevent proof of loss
intended
369
Jones, Davison, Hoffman Moines, & Des appellants. for Wilson, Don Moines, West Des J. appellee. BECKER, Justice. *3 grows action
This out aof collision at intersection Bird and Second Street Avenue, north of Interstate 80 in Polk County on July 15, 1965 about 5:20 P.M. Plaintiff driving Wilson was north on Sec- Avenue, ond a four-lane divided street. He collided with defendants’ bus which through had come the Bird Street intersec- tion and was athwart Second Avenue. alleged yield Plaintiff right failure way, to keep proper lookout, failure obey failure signs traffic control failure have the bus under control. The jury returned a plaintiff verdict for in the $25,000.00. sum of appeal cit- ing instructions and excessive dam- ages as error. reversible The nature of the intersection quickly accurately by plaintiff’s illustrated ex- reproduced top hibit 3 herewith. The picture is south. sign. They overpassing traffic first reason bus came off control Defendants’ e., ramp specification nonstatutory, at the superhighway shown i. on approached dependent law, plain- picture and on because right center of the common plead tiff did Since rule underpassing inferi- the statute. Second Avenue or, changed was stop-sign controlled street. Rules of Civil Procedure sentence, deleting “But a proceeding Plaintiff north on Sec- statute, asserting any pleading or coming ond He saw the bus Avenue. therefrom, shall refer to such stat- derived down on Bird off Interstate 80 Street: by plain designation,” it is not neces- ute “ * * * driving. kept I —it never dawned I sary upon the statutes which plead pull there on me that the bus would pleader State ex rel. LeBuhn relies. * * * stop. Q. Well, did and wouldn’t White, 903. 257 Iowa 133 N.W.2d stopped, you not it notice whether down, did it do? A. did slow or what The comment on this amendment to *4 really just assumed he didn’t notice. Cook, pocket part to rule found the 94 right out stop, just didn’t he rolled because I, Procedure, Iowa Rules of Civil Volume cross-examination, in front me.” On of change judicial states: “This is to assure plaintiff swear as said he could not to reference notice of Iowa statutes without stop. whether the bus did or did not the pleadings.” thereto in the If evidence justifies charge the under submission of stopped driver he Defendant bus testified statute, specification properly the the stop sign behind another car at the statutory submitted as a violation. question. pulled car out. He pulled The up stopped his and bus to Second Avenue argue II. the record taken again. A northbound car on Ave- Second favorably as a and most to whole viewed to nue left turned into the median cross evidence plaintiff reveals no substantial (southbound stopped the and lanes) west traffic control obey that failed to the bus stop for traffic. This forced defendant to signal. of part with the front in the medi- his bus an long area. the Since bus 40 feet Repp, 247 Turbot Iowa We said in the slab 22 feet northbound to wide the requirement “The 568: N.W.2d way. truck blocked the entire traveled stop yield the road that drivers on side highway the through gives traffic on the George Ballard testified he On rebuttal way. the dis- pointed As of took the same route as the bus. He duty stop and court, to tinguished trial the stopped stop east sign, at the crossed the compound duties. yield to are duty the lanes of turned Second Avenue and left or sepa- requested The would have instruction As south on soon as he turned he Second. applied no improperly the rated them and He screeching. heard looked brakes duties eyewitness portion rule of such to a sliding. the It hit around and saw car the also only. was correct.” See Its refusal at The bus the left rear duals. bus was Iowa Jones, 217 N.W. Hittle v. moving still when struck. 321.322, 321.321, Iowa 689 and sections (1966). Code patrol testimony The officer’s established foot, inch point impact of at one one west foregoing edge north bound lane the east Defendant attacks Repp, car had laid ground
Second Avenue. Plaintiff’s on the Turbot v. authorities eyewitness skid only down 71 feet of marks. decided that no supra, statute applied rule facet of the to neither quoted question. think the above We assignment Defendants’ first I. necessary the issue de paragraph was to evidence to error is there was insufficient In not obiter dicta. allegation cided and therefore justify plaintiff’s submission 321.321 and 321.322 both sections obey failed to event negligently that defendant and, stop having general addition to the rule forth in to set require the motorist fa- that yield to on the section 321.285 all motorists must stopped to motorists proper at a reading A drive reasonable and rate un careful highway. vored disjunctive existing. is der the circumstances then The “or” indicate statutes properly situations court instructed the latter fac only distinguish between to used et duty contradis- of the case. The to signs are used in additional slow yield where ordinarily ap as a at statutes down intersections is not stop signs. The to tinction plicable through highways motorists on compound duties noted require the whole intersecting duty where traffic has the above. general stop yield. considerations substantial evidence find Haker, are stated in Paulsen both finding that either or justify 532, 95 47, 51-52: were violated. duties facets defendants’ whole, testimony, taken as a
Plaintiff’s statutory right “The true is that the rule he the bus permits the first saw conclusion way guarantee safety, but If consid about 200 feet. distance of protected that the driver on the road must distances of given the relative eration is existing use reasonable care cir- under vehicles, all ma length and other their safety own cumstances his evidence, jury might well find terial Likewise, in with the others. connection a full have time to come to did lookout, bus duty keep a proper we think stops as defendant stop (or two full make duty is his make reasonable observation *5 it plaintiff first saw testified) after circumstances, driver including of all surrounding position point at pull to its and also may other traffic intersections and which impact. roads, intersecting be in fair view on ordinarily prudent to use such care as an think sufficient evidence there was everything light man would do in the the is- justify the submission of court’s to by disclosed such observations.” obey sig- traffic control sue of failure to a negligence. as nal Haker, supra, the Paulsen v. considers knows, the or situation where motorist complains also III. Defendant know, the road should the car on inferior speed on in court’s failure to instruct the way. going right is not to afford the gave the requested. The court the manner care under He must exercise reasonable predicated speed, standard instruction on negligence circumstances. The such 1966, which Code, section 321.285 on circum- driver the road such on favored shall drive at jury tells the that motorist lookout, speed. stances involves control regard speed having due careful rate of by concepts speed the are controlled But existing. all for conditions then developed after the favored the situation 321.- requested an under section instruction knows, know, the driver or should inferior jury that a have told the 288 which would obey is the law. going driver not to approach speed motorist shall reduce when unless he ing traversing or an intersection down, to as duty The a motorist slow already driving at a reasonable and is intersection, on approaches he while an speed. requested in proper rate The by considered highway has favored been appropriate the rule struction sets forth Supreme Noyce Michigan Court the fully the allusion here more than shortened Ross, 360 Mich. N.W.2d 736: requested. The trial used and is correct as superhighways are highways “Arterial it re apparently did not feel was court designed purpose moving auto- for the agree. quired in this case. We high speed. This
mobile traffic at
rates of
subject
has been discussed in McGuire
statutory
321.288
The section
Rabaut,
Mich.
speed
is in
This was face which had be assignment an error but thrown sutured. This left a by slight scar on the left from argument extending covered our side part in as properly the chin three Lacerations III. The record was or four inches. Division pre- lip, tongue therefore on the trial. lower and inside made at We have required merits the matter on its mouth also His broken ferred to treat sutures. 344(a) jaw Rule general deem it waived. was wired shut under anes- rather than thesia. mouth for R.C.P. His remained wired (4) (Third), during
over 15 weeks which time he was milk, liquid er diet of malted assigned consisting last V. Defendants’ food, baby They weighed and the He question. like. damage rors involve the pounds injured pounds provide when when the decision to argue first an wires were taken out of his mouth. of dentures was a full set plaintiff with days hospital be He was in the they five or six optional matter and should his damage days later when the for three rest an element of charged with such pulled. teeth his The were Plaintiff testified proximate the accident. as a result of prior good teeth were in condition twen complement normal of teeth number testimony, as accident. taken elev The dentist’s At the time the accident ty-eight. whole, plaintiff’s teeth plain would indicate previously removed and en had been in good were not condition but were The accident accounted pyorrhea. tiff had two unusual. Plaintiff was off work jury could of three more. The loss his about a month decision months worked with testimony that the find from the shut. At this time he was mouth wired pull the rest of the teeth was reasonable hardly in and very climb the acci weak could proximate result of and was bakery driver-sales- truck. As a out of his dent. had Baking Company, he man for Colonial testified, life per dentist “Dollar for dollar week. His making been $171.69 years ac- question partial (denture) expectancy stipulated whether at 32.8 would have lasted three Standard cording in this mouth would to the Commissioner’s years.” Ordinary of 1958. five Table damage claim was limited The car argue there was VI. damages special submitted The other $100. and the permanent injury no evidence of Dental Labo- “Taylor the court were: mat award was excessive. As to the first ambulance, $200.00; ratory in the sum teeth, ter, age lost several plaintiff, $35.00; Hospital, $12.00; Broadlawns full pulled, a being ended with the rest *7 Margules, medications, $27.74; Dr. and he jaw which denture and has a fractured of and reasonable value $75.00; the fair testified, with a my jaw aches “Sometimes item exceeding for each services, but not change in dull if there is throb a therefor, such as claimed the amount much It not interfere too weather. does anesthesis, $160.00; Edwards, $607.00; Dr. my opening and closing with the and loss Hospital, Lutheran and $479.60 permanent injury issue mouth.” The $1,373.52.” earnings at M.A. properly submitted. Mabrier v. Iowa, 180, 183 Servicing Corp., 161 N.W.2d here argue do the verdict and cited cases. prejudice un passion, was the result of Mazur rely entirely They due influence. may be injuries VII. Plaintiff’s 1292, Grantham, 1303,125N.W. Iowa v. 255 were follows: His ribs summarized as quoted in 807, 813-814, which is 2d They bothered bruised but not broken. deep members special He five of seven him about a month. had concurrence Lindeman, this in Allen Iowa Affirmed. court v. 1384, 610, 620: 148 N.W.2d GARFIELD, except All concur Justices we considering “In the size of verdicts SNELL, JJ., J.,C. and who LARSON passion repeatedly have referred dissent. conscience,
prejudice, failure shock justice, the rule administer substantial in support compensation,
fair and lack of GARFIELD, Chief Justice. City of Des Engman v. evidence. See 235; 1039, except Moines, 125 N.W.2d concur as to Division VII and 255 Iowa Rauch American Radiator & Standard affirmance. I think the amount of the v. 1, support verdict evi- Sanitary Corp., 252 Iowa 104 N.W.2d lacks substantial 607; 400, N. Riley, require 251 Iowa dence is excessive. I would Ferris v. Corrie, 176; 251 Iowa remittitur as a W.2d Hamdorf v. condition affirmance. 836; Ab N.W.2d Stevenson 429; bott, Iowa 99 N.W.2d SNELL, join JJ., LARSON and in this Co., v. Wemer & Wemer 248 Iowa Jesse dissent. 1002, 82 82. also 48 Iowa See Review, pp. Law It funda 649-665. seems sup
mental important the most of these is
port in the evidence. If the verdict has
support in the evidence the others will
hardly arise, support they may if it lacks
all arise. The cases question real most
and here sufficiency is the amount and support
evidence to the award made.” Allan J. BERGREN and the First National foregoing quotation omits the con- Exchange Virginia, Bank of Executors of cluding paragraph, sentence of the “Cer- Prosser, the Estate Catherine M. De tainly where the verdict is within reason- ceased, Appellants, range able as indicated the evidence the with what is courts should interfere
primarily jury question.” In Mazur v. In the Matter ESTATE Frances B. Grantham, supra, we reversed the trial MASON, Deceased, Clarence Clausen and court’s action a remittitur and di- ordering Anderson, Executors, Appel Frances M. lees. rected reinstatement of the verdict. No. 53142.
The rule set forth Mazur v. Gran- tham, firmly supra, established. The Supreme Court of Iowa. difficulty application. arises in To its Dec. 1968. quote more, cit. 255 same case once loe. 814: 125 N.W.2d loc. cit. support
“There is in the evidence for
substantial award. within The verdict *8 testimony. range fair us of' For merely judgment
interfere substitutes our jury, of the done this should be
with extreme caution.” sufficiently sup- the verdict is hold
ported by preclude the evidence to interfer-
ence court. this