*1 PARKER, & Town d/b/a Darlene Estate,

Country Appellee, Real

v. and Leota TUTTLE Tuttle, Appellants. 59171.

No. Supreme Court of Iowa. 21, 1977.

Dec.

Dixie Williams and defendant Wendell Tuttle for several acquaintances had been 1973 Williams years. early September, inquired called the Tuttle residence and any whether Mr. Tuttle was aware of small might farms that be Tuttle for sale. Septem- at home on stopped Mrs. Williams’ ber 1973 to advise her of a few small premises sale, farm which he knew were for and in the course of conversation Tuttle advised Mrs. Williams he would consider acre, selling per 25% to be farm for $600 paid down, on the interest balance. 8% later, Darlene Sometime either Parker or the Tuttle Mrs. Williams called residence and asked that be aerial furnished photos or Tuttle maps of the farm. On his work way to at the Farm Bureau office in later, Corydon morning days on a some Tuttle met Mrs. Parker at a convenient point requested and furnished her with the Werden, Reyn- Van Kimes & Reynoldson, photos. aerial Dixie Williams went to the oldson, Osceola, appellants. September Tuttle home on for the purpose having identify Wendell Tuttle Shelton, C., Michael P. J. Morr & the boundaries of the farm on her plat Streit, Chariton, appellee. book, but found Wendell Tuttle was not at engaged

home so Mrs. Williams Mrs. Leota not, Tuttle conversation. She did how- ever, ask Mrs. Tuttle whether she was in- REES, Justice. listing terested the farm sale or in by defendant real estate appeal This is an selling farm, nor did she discuss the from a favor of the judgment owners of the alleged listing agreement terms estate entered plaintiff real broker which she considered existed between to defendants for the jury verdict adverse plaintiff’s firm Mr. Tuttle. under the amount of a sale commission Apparently day on the same as the visit willing buyer and able rule even ready, Tuttle, of Mrs. Parker and Williams to Mrs. though farm was not sold. Fol- defendants’ Tuttle an presented Williams Wendell lowing overruling post- of defendants’ offer purchase agreement signed by one trial, they verdict institut- motion for a new Charles The offer was Shivvers. and remand for appeal. ed this reverse We $184,250 $10,000 sum of paid be a new trial. down and the to draw balance interest at defendants, Leota Wendell and Tut- the rate of a term of years. 7% over tle, wife, husband and all times acceptance offer and agreement reflected controversy, owners ten- material to the paid $20,000 that the on balance was premises ants-in-common of a farm contain- 1,1974, $10,000, September or before March ing County. 335 acres Darlene Wayne 1, 1974, $10,000 plus 7% interest on Parker, at times a licensed all material 1,1975, and each March March 1st until the broker, real estate under operating in full. Tuttle paid balance was Country tradename of Town & style accept provisions did not the terms and Real was a sales- Estate. Dixie Williams Tuttle, testifying, referring offer. Par- person employ plaintiff the offer which was identified “C”, ker. he like record as Exhibit stated did not overruling Trial court erred in de- (1) or the provisions, interest price, material terms, further fendants’ to strike certain and testified motion payment down he petition plaintiff. and Williams he Parker from advised mortgage out his wipe down wanted 25% Trial (2) court erred further testified that Tuttle on the farm. Tuttle for motion of defendant Wendell *3 time Exhibit “C” at the Parker stated Mrs. 29, his filed October leave to amend answer acceptance his to Tuttle for proffered was begin to on with the trial scheduled 1975 was un- Shivvers, proposed buyer, the 30, October 1975. up to with 25%down at that time come able overruling (3) Trial court erred de- that dur- further testified Tuttle payment. for verdict at the fendants’ motion directed he Parker meeting advised ing the same and at the close of the close plaintiff’s case he than $600 and Williams would take less of all the evidence. a three-acre if he could reserve only an acre overruling of land on which was situated (4) tract Trial court erred de- site, if said reservation government bin and notwith- judgment fendants’ motion for selling verdict; he would consider satisfactory standing was the and $198,000. for entire tract overruling erred in (5) Trial court de- Parker and Williams same afternoon for new motion trial. fendants’ office in at the Farm Bureau met Tuttle I. In their issue stated re first a second offer in presented and Corydon view, trial court erred defendants contend was identified in record writing, which motion to strike matter overruling their provided offer Exhibit “D”. The as plaintiff. petition from the Motions $10,000 $200,000 to be payment, total to should be sustained pleadings strike from the remain- down, 7½%interest on paid and allegations pleading when the Tuttle he did not balance. testified ing to possible relationship attacked had no offer, although he indicated to accept controversy, any if doubt to there the offer was a Williams that Parker and pleaded any contingency whether under one, and sales- the broker good and advised issue mo allegations go to material with his in touch person get they Evans v. tion to strike should be denied. her wife, Leota, opinion to determine 268, 278, 41 Herbranson, 241 Iowa N.W.2d that, fact, Parker testified offer. second 925, citations; 113, 119-120, 15A.L.R.2d approved Tuttle dictated Wendell Land, of Certain In re Condemnation Exhibit “D”. set out in terms 1134-1135, 290, 114 N.W.2d 253 Iowa afternoon, Tut- same Later that 292. tle, went to the Tuttle Parker and Williams did not exceed limits offer, court the second presented residence overruling defendants’ of its discretion “D”, Mrs. Tuttle. Leota Tuttle Exhibit to plaintiff’s petition. to motion strike from although good it was a stated that has it offer, to consider with she needed time for trial on II. The scheduled cause her ac- husband, and did not indicate her 30, 1975,and 29 defendant October October September the offer. On ceptance of seeking motion leave Wendell Tuttle filed a to Tuttle residence Mrs. Parker called the In answer. to amend his court disposed were whether Tuttles inquire to amend sought permission he amendment offer, and accept to the second Shivvers answer, in which he paragraph his 3 of were not the Tuttles by advised that “on about originally pleaded had it. The institution of the accept going plaintiff’s did tell he September a verdict for the followed, resulting in suit sell the described would salesperson he ** * $10,000. plaintiff for ”, and he per acre farm $600 words, to his “subject desired add following state the issues Defendants words, “would approval” review, a re- wife’s after mandate contend sell”. versal. unable overruling perceive defendant’s motion to We are any abuse of answer, his trial court found and on court in part

amend discretion of the trial “that, defendant’s an by amending overruling ordered its defendant’s motion time, is changing swer at this the defendant amend his answer. making defense in that he is the con his the next issue stated III. acceptance, conditional the wife’s tract review, defendants assert the trial court pleaded pleadings which has not been erred in their direct motions to ambiguous other than in terms ‘and their verdicts in favor at the close * * met’ other relevant conditions were plaintiff’s case and renewed at close of that, appears by to the court amend now all the evidence. ing ‘subject answer to insert We do not feel called to extend this approval’, change wife’s it would the issues *4 opinion by treating this issue in detail. We defendant, change and the defense of have reviewed the record and conclude Tuttle, and the court overrules the a fact question there was generated by the pleadings motion for leave to amend the as in all respects evidence referred to in proposed”. the briefs and arguments parties, of the great Trial courts have discretion in al- justifying submission of the to the case lowing 88, pleadings. amendments to Rule jury overruling and defendants’ mo- (Reference Rules of Civil Procedure. direction of perceive tions for verdict. We being appeared

rule 88 to the rule as it part no error on the of the in trial court this by of-January before its amendment order connection. 28, case, 1977). of this At the time of trial IV. Nor do we feel called upon to ex- rule 88 read: opinion unduly tend this in by passing de- “Any amended before pleading may be all upon tail of the matters by raised responding a pleading has been filed to it. in defendants their contention that the trial court, justice, in may furtherance of in overruling court erred their motion amendments, allow later including those judgment notwithstanding the verdict filed which conform to the and do not proof after the had returned its and verdict the claim or substantially change defense. prior entry to the of judgment. same terms, grant The court or may impose a grounds urged judg- motion for terms, continuance with or without as a notwithstanding ment the verdict were as condition of such allowance.” urged by the defendants in the motion pleadings Amendments to should not direction verdict. be allowed on the eve of trial later if contending V. court erred substantially change the defense or their trial, motion for a new issue any involved in the case. Ackerman Lauver, multiple defendants state which 342, (Iowa v. 242 sub-issues 1976); N.W.2d 345 Sears, They assert mandate a reversal. con- Corp. Atlantic Veneer v. 232 N.W.2d 499, initially tend that the verdict (Iowa sup- 503 was not 1975); Farmers Insurance Group ported 184, by v. N.W.2d sufficient evidence. We have Merryweather, 214 (Iowa upon 1974); Village 188 Enter touched this contention heretofore in Smith v. Inc., our prises, (Iowa 1973). discussion of the motion a N.W.2d to direct verdict and motion for judgment notwith- The trial court took the view that verdict, standing the and do not deem it words, “subject addition of the to his necessary explore this fur- contention approval” changed wife’s substantially ther. referring defense in this to a by specif case jury in VI. The this case was directed ic claim of have defendant that could been by # 16 as instruction follows: considered being ambiguously em term, braced “other relevant condi been agreed by “It has the parties tions”, which phrase you may was the defend hereto that return a sealed ver- ant’s answer as originally cast filed. dict. plaintiff, and of the fixed the amount of of verdict are forms

“Attached hereto against which the defendants plaintiffs recovery will use that you may $10,000. you agree at As is obvious from instruction with verdict accord out, in this the case was submitted case. # above set o’clock, and it p.m., at 3:26 during a verdict you “If return o’clock, at deliberation, returned sealed verdict 9:32 it your hours of first six 3, 1975. p.m., will on November The record you all of agreed by be must If, discloses, agree, af- that out of only. parties and the signed by your foreman hours, you are time elapsed for six the six-hour six-minute deliberating ter verdict to arrive at a unanimous between the submission case to unable may verdict, a verdict and you return the return ten agree. the ten If signed by who one meal spent partaking must be hour or more of a dissenting juror, he foreman is a cafe Corydon. We are faced your sign not the verdict. determining, as a mat- responsibility jurisdiction, in this impression ter of first you at 3:26 “This case is submitted jury eating spent by whether time o’clock, your delibera- at which time p.m., or excluded from place public commence. is included are deemed to tions six- computing the deliberation time your ver- you agreed upon have “After 203(a) rule before by period required hour same, the foreman signed dict to return a valid permitted can be and ver- place then the instructions will *5 five-sixths verdict. given you for that envelope the dict in the it, seal and deliver and purpose, the cite plaintiff the and Both defendants to bailiff. exhibits upon reliance place and considerable numbered instructions foregoing “The Supreme the Minnesota pronouncements of 16, inclusive, read to were each One from to Supreme Court Court the Nebraska the Court on its jury by given plain The divergent views. support their November, day of motion this 3rd own acted jury properly tiff contends the 1975.” verdict it had returning a five-sixths after a total was consistent case consideration for foregoing instruction under The 203(a) Rules of Civil Proce- hours and minutes. elapsed rule of the time of six six 203(a) Acts re by was that rule dure which amended insists defendant 1973, and which Assembly for a of six period 65th General quires actual deliberation n reads as follows: verdict than unanimous hours before a less Minnesota case cited permitted. is “(a) general Before a ver- Number. on is In re Hurlbut’s dict, verdicts, by parties to relied special or answers inter- both Estate, 180, 148 In that returned, the 126 N.W. 51. parties may are Minn. rogatories 5:25 and re finding may p.m. that be ren- case the retired at stipulate jury fol by majority jurors. a of turned its at 11:47 a.m. on the dered stated verdict day, 18 stipulation, gen- lowing the absence out over having In of such been trifle verdicts, verdict, 7805, special or answers The General eral hours. Section Statutes may by be rendered interrogatories (1913),provided: to of Minnesota However, no jurors. five-sixths of the proceedings “In all civil actions or verdict, verdict answers general special state, any court of record of this after be interrogatories may by rendered deliberation, agreement twelve hours’ or less until the jurors five-sixths be any jury therein shall of five-sixths period for a jurors have deliberated verdict; valid the delib- sufficient and than after the issues to not less six hours jury shall be deemed eration of the have submitted them.” be decided been taking have when officer commenced sworn, has been verdict, charge jury rendering ten members of In its enter such time in the clerk shall # 1 submitted jury signed verdict form court, records.” they found in favor by the which Hurlbut, the appellant claimed The Supreme Court of Nebraska was actually

the time devoted to the considera- called statute, to construe its 25- § hours, tion of the case was less than twelve 1125, R.R.S.1943, enacted under constitu- support and submitted in of his contention tional authorization provided in sub- an affidavit made one of the by jurors ten stance that where five-sixths of the mem- signed who the verdict. The Minnesota bers of a jury verdict, concur in a it will juror Court held that affidavit of the have the same validity as if all members of was not admissible for the purpose of jury therein, concurred and that a ver- impeaching the verdict of the jury, and dict concurred in by less than all of the said, page 52 of 148 N.W.: members of should not be rendered statute, “We think that neither the nor until opportu- should have had an provision constitutional upon which it nity deliberation and consideration of based, contemplated that the court the case period of not less than six pry into the secrets of the hours after the case was submitted room and jurors determine when the jury. Cartwright Wilson Construction & were deliberating they when Smith, Co. v. Nebr. N.W.2d not. There is no intention manifested to the first matter in which the Nebraska place jurors espionage under an to which court had pass occasion to directly upon the subjected, had not before been nor proposition, it held that Hurlbut appli- secrecy raise the veil of which en- cable and decisive upon point. In Cart- them shrouds while in retirement for the wright the record disclosed that case was purpose consulting together and deter- submitted to the jury p.m. at 4:30 on March mining upon During their verdict. such 14, 1951, which deliberated until p.m. 6:00 retirement are presumed prop- when it was taken to dinner at a local cafe erly performing their duties. Their delib- by the bailiff. Approximately one hour erations necessarily are not confined to elapsed from the time the left discussions with each other. While such room until it returned after dinner. The discussions are essential to the proper jury advised the bailiff it was ready to *6 consideration of concerning matters return verdict, a at which time the court which there is a difference of opinion, a and counsel for the respective parties were juror may wisely deliberate as and to as notified. court, At the direction of the the good effect considering when he is jury was brought into open court and deliv- weighing the in mind, evidence his own ered its verdict, in by concurred ten mem- as when he is pressing his conclusions bers, p.m. 10:45 * * * upon his fellows. The court as- It should be noted that the Nebraska sumes they that are deliberating while in provided statute that jury the “should have retirement purpose that and will had an opportunity for deliberation and made no inquiry into the nature or extent * * * consideration of the case for period a of not of such deliberations. less than six hours after the same is sub- “It is of province court, the the trial mitted to jury”. (Italics ours.) said how, where, which knows and under what jury conditions the has been confined R.C.P., Rule 203(a), above, is, set out during its retirement and is familiar with our judgment, considerably more restrictive circumstances, all the to determine when than the Nebraska rule statute. Our re- jury given has sufficient considera- quires jurors to “have deliberated for a tion to a case to warrant receiving a period hours”, whereas, of not less than six * * * verdict not unanimous. Where statute, being restrictive, Nebraska less has been jury in retirement for period only requires jury that have “an oppor- well beyond the time prescribed by stat- tunity for (Italics ours.) deliberation”. ute, the law conclusively presumes that they have been in deliberation for the 203(a), We believe that rule required length R.C.P., of time.” means, not what it says but of a due to in the event mistrial jury It trial says. requires what it means jury being unable reach a verdict of not period for a be in actual deliberation brought jury some of the members of the hours before a nonunanimous than six less agreement respect, delib- into submission eventual this permitted. verdict is in the actually spent majority. time with the eration means juryA is not in actual delibera- room. jury manual, The or pamphlet, should not in the Obviously, at recess. tion when it is apparently in the jury have been room here, could not us matter before plaintiff both the defendants and the are in of six period have been deliberation agreement point. on this We need not de court erred and we believe hours requires this incident reversal cide whether a new motion for defendants’ granting not ground because we reverse on the treated showing. such trial based VI, in Division we problem trust the to deliberate When the retired VII. Further, will not recur on retrial. the affi took verdict, jurors some upon its jurors davit of one of the the record Manual” a “Trial Juror’s with them satisfy jurors this case does not us that the members handed to individual had been as regarded the manual evidence. reported they at the time jury panel of the out in paragraph set jury duty. One VIII. during Sometime their delib follows: jurors jurors agreement manual advised erations the were in that part testimony to hear they desired Quite often “Differing Viewpoints: (more that particularly, of defendant Wen jur- between opinion arise differences com Tuttle) They dell read back to them. out hear one another happens If this ors. regard their desires municated in this a final conclusion. forming before charge. bailiff who had the are thoughts collective bailiff made an affidavit which was at yet opinion leveler of equalizer best tached to the defendants’ motion for a new you legal process. Each devised (referring trial. his affidavit he stated experiences and values- brings his own reading jury’s request and, room from these differ- into the “I told testimony): they them couldn’t have viewpoints, conglomerate comes the ent I told them could it. had all change your Don’t hesitate to verdict. call the judge.” Clearly, have. I did not you opinion if decide that first your mind improper would have been bailiff incorrect, you change but not granted request have of the foreman to per- opinion you honestly unless are your testimony have the of defendant Wendell is the changed opinion suaded read back to them without direct Tuttle *7 wrong one. Just as it is for one correct judge of the trial to have the authority opinionated bully to be juror try to into court for further instructions. returned mind, just changing into it is another Shenandoah, v. Town Fleming See of to to listen to wrong juror for a refuse 506-507, Iowa 758. Un N.W. opinions If arguments and of others. permitted der his oath the bailiff was can is fair and reasonable a everyone pur to with the for the communicate not, means if usually agree; generally pose determining jurors whether the had trial, expense great new agreed upon a verdict. jurors so parties state fair, to one and courteous reasonable Clearly, upon it was incumbent an try agreement.” to reach another jury’s request bailiff to communicate judge trial judge, the text of the the trial and for the defendant claims that out, counsel jurors set which the ad- determine after conference with manual above do request. We during grant jury’s their delibera- whether mittedly considered n the bail- tions, verdict-urging decide whether conduct of and coercive not being rises to the level of a new iff in this case expense the reference certainly want to be error, but reversible criticizing the conduct of understood as request report failing

bailiff judge. trial court upon our conclusion the Based for a defendants’ motion erred in claim the defendants’ new trial based itself in its comported had not 203(a), in accordance with rule deliberations R.C.P., and remand it we reverse this case new trial. AND REMANDED.

REVERSED concur, RAWLINGS, Justices except All J., and REYNOLD- specially who concurs J.,

SON, no part. who takes RAWLINGS, (concurring special- Justice ty)- reverse, only upon the same

I would not but also because majority, basis as does me errors con- of what are to reversible in Division VII and VIII of the sidered majority opinion. I result.

Therefore concur Smith, Cyril Admins and Clara J. SMITH Smith, Estate of Dennis E. trators of the Deceased, Cyril and Clara J. Smith

Smith, Appellants,

v. Barrett, BAULE, Dal L. Louis C. Charles Scherrman, Raymond Murphy, las L. J. Thoma, Schoenthal, L. Nelson Steven Iowa, Municipal Dubuque County, Cor Wine, Moines, Des Davis, Hockenberg & Railroad, poration, Illinois Central Gulf appellants. Ready- Flynn Corporation, a Delaware Quann Brendan T. Robert Bertsch and Co., Corporation, Mix Concrete an Iowa Hammer, *8 Inc., Thomas, Flynn Ready-Mix, O’Connor, Wright, an Iowa Cor Appellees. poration, Dubuque, appellee, Norby, Bertsch & Railroad. Illinois Central Gulf

No. 59673. of Iowa. Supreme Court Dec. 1977.

MOORE, Justice. Chief court’s dismissal appealed

Plaintiffs wrongful action as to defend- of their death