Madison v. Colby

348 N.W.2d 202, 1984 Iowa Sup. LEXIS 1099
CourtSupreme Court of Iowa
DecidedApril 11, 1984
Docket69148
StatusPublished
Cited by67 cases

This text of 348 N.W.2d 202 (Madison v. Colby) 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
Madison v. Colby, 348 N.W.2d 202, 1984 Iowa Sup. LEXIS 1099 (iowa 1984).

Opinions

McCORMICK, Justice.

Plaintiffs Ambert Marie Madison and Alan Lee Madison appeal from judgments entered on jury verdicts in their negligence action against defendants Charles and Ruth Colby, Ashworth Plaza, Inc., and Ash-worth Plaza, Ltd. The case arose from Ambert’s claim that she fell and was injured on two separate occasions in a parking lot maintained by defendants. The lot was adjacent to a West Des Moines office building where Ambert worked. She sought damages for her injuries and her husband Alan sought damages for loss of consortium. Upon submission of the ease, the jury returned a verdict for $700 for Ambert on her claim and denied damages to Alan. In this appeal, plaintiffs seek reversal and a new trial based on several assignments of error. We reverse and remand.

The determinative questions are whether the trial court erred in overruling plaintiffs’ hearsay objection to admissibility of a medical record and in overruling plaintiffs’ objection to an instruction on the elements of Alan’s consortium claim.

I. The medical record. Ambert’s first treating physician was Dr. Burton Rout-man who saw her before and after her first fall in the parking lot, which occurred on January 24, 1979. In mid-1979 the doctor moved to Israel, and his testimony was not offered at trial. Defense counsel used a purported office record of Dr. Routman, however, in cross-examining Ambert and her husband.

The record was not then in evidence, and plaintiffs’ counsel objected on various grounds to defense counsel’s interpretations of and references to the record during cross-examination. We pass the issues whether error was preserved and whether reversible error occurred in these exchanges. We do consider these incidents as background in deciding whether it was reversible error for the trial court to overrule plaintiffs’ timely hearsay objection to defendants’ offer of the report.

The record was offered during the testimony of Dr. Christopher B. Hall, a Minnesota chiropractor who treated Ambert after plaintiffs’ move to Minnesota in 1980. Dr. Hall testified that he obtained Dr. Rout-[204]*204man’s record to assist him in treating Am-bert.

Because Dr. Routman’s office record was offered at least in part to prove the truth of the matters asserted in it, the record was hearsay. See State v. Fingert, 298 N.W.2d 249, 251 (Iowa 1980). In defending its admissibility, defendants contend it was correctly admitted under Iowa Code section 622.28 (1981), the business records statute in effect at the time of trial. Two problems exist with this contention.

First, if offered as a business record of Dr. Hall to prove assertions of Dr. Rout-man, exclusion would be required under the “hearsay within hearsay” or double hearsay rule explained in In re Estate of Poulos, 229 N.W.2d 721, 727 (Iowa 1975). This concept is now incorporated in Iowa Rule of Evidence 805. Hearsay within hearsay must separately come within an exception to the hearsay rule to be admissible. No exception that would make Dr. Routman’s record admissible as part of Dr. Hall’s record has been identified or demonstrated here.

Second, the foundational requisites for admissibility of the record under section 622.28 were not established. They are delineated in State v. Fisher, 178 N.W.2d 380, 382 (Iowa 1970). Specifically, defendants failed to show that Dr. Routman’s record was made in the regular course of business at or about the time of the events recorded or that the sources of information and method of preparation were such as to indicate its trustworthiness. Cf. Iowa R.Evid. 803(6) (establishing present foundational requirements).

We find that the trial court erred in overruling plaintiffs’ objections to the exhibit. We also find that the presumption of prejudice which accompanies the erroneous admission of evidence was not overcome in this case.

Much of the defense was devoted to minimizing the injuries suffered by Ambert in the two falls on defendants’ property. Considerable evidence was adduced concerning other accidents for which she obtained medical care. The nature and extent of other injuries, and the care and treatment for them, became significant issues. Ambert freely acknowledged the other incidents but disputed defendants’ suggestions that they were largely responsible for her damages. The office record of Dr. Routman was relied on by defendants in presenting their theory of defense and played a vital part in it before and after the document was admitted into evidence. We conclude Ambert is entitled to a new trial.

In addition, because the verdict denying Alan recovery for loss of consortium may have been based on failure of proof of damages, we are unable to find he was not prejudiced by admission of the exhibit. His damage claim was directly related to the strength of Ambert’s proof concerning the seriousness of her injuries in the two falls. We therefore also reverse and remand for new trial on Alan’s claim.

II. The consortium claim. One issue likely to recur on retrial concerns the correctness of the trial court’s instruction on the elements of Alan’s claim for loss of spousal consortium. Over plaintiffs’ objection the court refused to include marital services as one of those elements. Plaintiffs contend the court erred in overruling their objection.

The trial court’s instruction substantially conformed to the delineation of loss of consortium elements in Acuff v. Schmit, 248 Iowa 272, 274, 78 N.W.2d 480, 481-82 (1956). Those elements constitute the “sentimental version” of the doctrine and include “conjugal fellowship of husband and wife; and the right of each to the company, cooperation, affection and aid of the other in every conjugal relation.” Id., 78 N.W.2d at 482. The Acuff court contrasted this version with a “material” or “practical” version which “Included not only conjugal fellowship of husband and wife, but also service as a prominent, if not the dominant factor; not so much the service resulting in the performance of labor or the earning of wages, as the service [205]*205which contributed and assisted in all the relations of domestic life.” Id., 78 N.W.2d at 481-82.

Originally at common law a husband could recover for loss of his wife’s services as part of a consortium claim. Id. This changed in wrongful death cases when the claim for lost services was given by a statute enacted in 1911 to the deceased wife’s administrator. See Weitl v. Moes, 311 N.W.2d 259, 264 (Iowa 1981). A 1941 amendment to the statute gave an injured wife the same right. Id. The last amendment to the statute gave reciprocal rights to the husband and the husband’s administrator. See 1965 G.A. ch. 427. The statute, which appears in the present Code as section 613.15, provides:

In any action for damages because of the wrongful or negligent injury or death of a woman, there shall be no disabilities or restrictions, and recovery may be had on account thereof in the same manner as in cases of damage because of the wrongful or negligent injury or death of a man.

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Bluebook (online)
348 N.W.2d 202, 1984 Iowa Sup. LEXIS 1099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/madison-v-colby-iowa-1984.