Laguna v. Prouty

300 N.W.2d 98, 1981 Iowa Sup. LEXIS 839
CourtSupreme Court of Iowa
DecidedJanuary 14, 1981
Docket63786
StatusPublished
Cited by15 cases

This text of 300 N.W.2d 98 (Laguna v. Prouty) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Laguna v. Prouty, 300 N.W.2d 98, 1981 Iowa Sup. LEXIS 839 (iowa 1981).

Opinions

McCORMICK, Justice.

This appeal involves a passenger’s personal injury claim arising from a motor vehicle accident. Plaintiff Emma Laguna was a passenger in an automobile driven by her husband which collided on highway 30 in Boone County with the rear of a flatbed tractor-trailer unit driven by defendant Es-tel LeRoy Prouty. Visibility was obscured by fog at the time of the accident. Appealing from judgment entered on an adverse [100]*100jury verdict, plaintiff contends the trial court erred in four rulings during trial and in overruling her motion for new trial. We affirm.

The questions are whether the trial court erred in sustaining an objection to a photograph of the accident scene, in overruling a motion to strike a deputy sheriff’s estimate of the automobile’s speed at the time of impact, in overruling an objection to a statement of defense counsel in final argument, in overruling an objection to an instruction on assured clear distance, and in overruling a motion for new trial based on the accumulation of erroneous rulings.

I. The photograph. Although a diagram of the accident scene and other photographs were admitted, the trial court sustained defendant’s objection to a photograph purporting to show a deputy sheriff standing at the point of impact. The problem with the photograph is that the deputy testified at trial he was standing in the wrong place. Under the standard explained in Twyford v. Weber, 220 N.W.2d 919, 924-26 (Iowa 1974), we find no abuse of discretion in the court’s ruling.

II. The speed estimate. When asked if he had an opinion of the speed of the automobile at impact, the deputy estimated its speed at “around 35 miles an hour.” Plaintiff’s counsel did not object to the question but after the answer said: “I move to strike that as it’s given voluntarily and no foundation to have such an opinion before the jury.” The trial court overruled the motion.

In assigning the ruling as error, plaintiff asserts that the failure to make a timely objection is excused because the question called only for a yes or no answer. When an answer of an adverse party’s witness is voluntary and unexpected, the answer may be attacked by motion to strike. Harrison v. Ulicki, 193 N.W.2d 533, 537 (Iowa 1972). However, the motion to strike must show why the answer is inadmissible, not merely that it was unexpected. The problem here is that the ground of the motion to strike is inadequate to preserve error. Reversible error ordinarily cannot be predicated upon the general objection that no proper foundation has been laid for admission of an opinion. Hedges v. Conder, 166 N.W.2d 844, 856 (Iowa 1969).

Plaintiff argues the motion was sufficient to alert the trial court in this case because an objection had been made and sustained earlier on the same ground. The record shows the witness had earlier been asked if he had an estimate of “the differential speed from the automobile and the truck at the time of the impact.” Plaintiff’s counsel objected on the grounds of “no qualification” and “no foundation,” and the objection was sustained. This objection does not lend any specificity to the subsequent motion to strike. Several foundational questions were interposed between the time the objection was sustained and the motion to strike was made. The motion was insufficient to alert the trial court to any specific foundational deficiency.

We conclude the motion to strike did not preserve error.

III. Final argument. In her petition, plaintiff asked for $200,000 in damages from defendant. Final arguments were not reported. However, a record was made in chambers concerning a statement made by defense counsel Don N. Kersten during his argument. Mr. Kersten acknowledged telling the jury plaintiff “has come into Boone County asking a Boone County jury to take $200,000 out of the pocket ... of the defendant.” Plaintiff objected to the statement on two grounds. She asserted it was an appeal to local prejudice, and she alleged it improperly referred to the method of collection of any judgment which might result from a plaintiff’s verdict. She did not move for mistrial.

The trial court sustained the objection based on the alleged appeal to local prejudice and offered to admonish the jury about it if plaintiff requested. The record does not show a request was made. The court overruled the remainder of the objection.

In defending his jury argument during the in-chambers discussion, attorney Ker-sten said:

[101]*101I maintain that insurance is merely an indemnity matter between the insured and his own insured. [It] is true that Mrs. Laguna has come into this court and has asked this jury to take $200,000 out of Mr. Prouty’s pocket. How the money gets into his pocket is insurance, but this is what she has actually done.

Plaintiff’s counsel admitted that the petition requested an award of damages from defendant. However, he contended that the argument implied defendant would pay the award. Pretrial discovery had established defendant had liability insurance coverage of $1,000,000. The court stood by its ruling.

Defense counsel’s reference to defendant’s residency was the kind of remark this court has held can be cured by an admonition to the jury by the trial court. See Turner v. Jones, 215 N.W.2d 289, 291 (Iowa 1974). By failing to request an admonition in response to the court’s offer, plaintiff waived any error based on that aspect of the statement.

Plaintiff did preserve error on the ground that the remark improperly implied defendant was uninsured. We believe defense counsel was correct in asserting insurance was a matter of indemnity between defendant and his carrier. However, we also believe the argument that plaintiff was asking the jury to take $200,000 “out of the pocket” of defendant could reasonably be taken to imply defendant was uninsured. In reaching this conclusion, we disagree with cases from other jurisdictions cited by defendant. See, e. g., Reeves v. Eckles, 108 Ill.App.2d 427, 248 N.E.2d 125 (1969); Kirk v. Harris, 364 N.E.2d 145 (Ind.App.1977).

We have not previously been required to decide whether an argument which permits a jury to infer a defendant is uninsured is objectionable. Plaintiff contends the argument was improper because it could have misled the jury into believing defendant was uninsured, which was not the fact. She argues the remedy should be the same as when the existence of insurance is improperly injected into a ease. When the reference to insurance is intentional, the resulting prejudice cannot be cured by an instruction. Price v. King, 255 Iowa 314, 322, 122 N.W.2d 318, 323 (1963). However, not all of the same considerations are applicable when lack of insurance is suggested.

The court has recognized three reasons for inadmissibility of evidence of the existence of insurance. First, the evidence is ordinarily irrelevant to any issue in the case.

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Laguna v. Prouty
300 N.W.2d 98 (Supreme Court of Iowa, 1981)

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300 N.W.2d 98, 1981 Iowa Sup. LEXIS 839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laguna-v-prouty-iowa-1981.