Nepple v. Weifenbach , 274 N.W.2d 728 ( 1979 )

LARSON, Justice.

Plaintiff appeals from a judgment entered in his favor for personal injuries arising out of a motor vehicle collision, raising issues as to the propriety of the court’s (1) instructing the jury that plaintiff had a duty “to make use of reasonable means to effect as speedy and complete a cure . as could be reasonably accomplished;” (2) allowing defendant’s use of certain portions of a medical deposition; and (3) permitting introduction of evidence concerning amounts received in settlement for prior injuries. Because of errors committed as to the last issue, we reverse and remand for a new trial.

A detailed recitation of the facts of the collision giving rise to this claim is not required. Stated briefly, plaintiff Norbert Nepple was riding in a vehicle which collided at a stop-sign intersection with a gravel truck owned by the defendant Sac County and operated by its co-defendant Weifen-bach. The collision occurred in Sac County, but trial was moved to Ida County on a change of venue. During the trial it was shown that plaintiff had suffered prior injuries, and it is that matter which sparked the heated confrontations now before us in issues (2) and (3).

I. Plaintiff complains that the trial court erred in its instruction 29, which stated in part:

If under the evidence and these instructions you find that the plaintiff, Norbert Nepple, is entitled to recover damages herein, you are instructed that it was the duty of the plaintiff, Norbert Nepple, to make use of reasonable means to effect as speedy and complete a cure of his injuries as could be reasonably accomplished under all the circumstances. If you find from the evidence that said plaintiff failed to act as a reasonable prudent person to make use of reasonable means to effect as speedy and complete a cure of his injuries as could be reasonably accomplished under all the circumstances, he cannot recover for any injuries, suffering and disability caused or induced by such failure.

The plaintiff contends this improperly placed upon him the burden of proving mitigation of his own damages, contrary to our holding in Shewry v. Heuer, 255 Iowa 147, 154, 121 N.W.2d 529, 533 (1963) and the provisions of § 619.7, The Code. He did not raise this issue at trial in his objections to the instructions, however, complaining only that “[t]he record is completely devoid of any evidence that this injury could ever be cured and yet the instruction says ‘cure,’ and so we feel that that certainly is improper because it’s obvious that a fracture can’t be cured.”

This objection did not raise the issue of shifting of the burden of proving mitigation and we may not, therefore, rule on this matter on appeal. Rule of Civil Procedure 196; Rush v. Sioux City, 240 N.W.2d 431, 441 (Iowa 1976). In order to provide guidance on retrial, however, we advise the trial court that we have serious doubts about the propriety of any instruction which places the burden of proving such mitigation upon the plaintiff. See Shewry v. Heuer, 255 Iowa at 154, 121 N.W.2d at 533.

II. Plaintiff also complains that the court erred in allowing defendants to use portions of a pretrial deposition of the treating doctor in their case in chief. This deposition had been taken shortly before trial, because the doctor was expected to be out of town for the trial. Because of a delay in completing the trial caused by a snow storm, the doctor actually was available in person at the time his deposition was used by defendants at trial. Plaintiff on appeal urges errors as to use of the deposi-. tion on two grounds: (a) that use of any portion of the deposition was improper, because the foundational basis for its use under Rule of Civil Procedure 144(c), i. e., absence of the witness, no longer existed; and (b) that part of the deposition dealing with an April 1975 medical report on the plaintiff offered in defendants’ own evidence was not admissible, because the trial court had previously excluded the same evidence when offered by defendants as part of their recross-examination of the doctor. This report showed continuing problems then existing as a result of a previous injury. It is undisputed that plaintiff had not touched on this report in his redirect examination of the doctor.

We need not determine whether or not the court erred in admitting this portion of the deposition to determine the disposition of this case on appeal, in view of our disposition of the third issue raised, which requires reversal. Under the stipulation of the parties any evidentiary use of the deposition would be conditioned upon the unavailability of the doctor as a witness, under rule 144(c). It is so unlikely that the same problem would be again presented to the trial court in the same context that deciding the issue for possible guidance on retrial would serve no useful purpose.

III. The last issue raised, and the one which disposes of this case on appeal, concerned the trial court’s admission into evidence of certain suits, claims, settlements, and workers’ compensation awards arising out of prior injuries suffered by plaintiff. In 1969 he had fallen from a ladder, causing a skull fracture. In 1973, he was involved in a motor vehicle accident resulting in an injury to his neck. The incident for which he presently seeks recovery occurred in June 1975 and caused injury to his head, shoulder, wrist and forearm.

Plaintiff testified about these prior injuries and attempted to show that his present complaints were caused by his latest accident and not by those prior. He testified that he had been able to work, with some limitations, after both of the prior incidents. No mention was made on direct examination of any prior claims by him. However, on cross-examination, the following occurred:

Q. Did you have any problems at all when you went back to work [after the 1969 fall from a ladder] for Bad-ding in doing your work?

A. No.

Q. You were able to do everything that they requested you to do?

A. Yes.

Q. Now, did you receive any compensation or payment for the injuries that you sustained by reason of the fall you had in 1969?

A. Yes.

[Plaintiff’s attorney:] I am going to object to this as not proper cross-examination. It’s irrelevant and immaterial.

The Court: Overruled.

A. Oh, yes, I did. I received workmen’s comp.

Q. For how long a period?

A. Until in October.

Q. Now, what were the specific injuries that you were being paid for during that period of time?

A. Of ’69?

Q. Yes. What injuries did you claim that caused them to pay you this money?

A. Head and neck injuries.

Q. Now, with regard to the accident that occurred in 1973 what injuries do you claim you sustained in that accident?

A. Neck injuries.

Q. What part of your neck?

A. At the base of the skull.

Q.. Now, in connection with that [1973 accident], did you ever receive any compensation or payment by reason of that injury?

Plaintiff’s attorney: Same objection last urged . . . and it is irrelevant and immaterial, not the best evidence.

The Court: Overruled. Will you read him the last question.

A. Are you referring to the ’73 accident?

Q. Yes, I am, sir.

A. Yes, workmen’s comp.

Q. Did you receive anything other than workmen’s compensation as a result of that accident?

Plaintiff’s attorney: Same objection last urged.

The Court: Same ruling. You may answer.

A. No.

Q. Isn’t it a fact that you retained Mr. Wunschel as your lawyer _ _ _

A. Oh _ . _

Q. —in connection with that accident, didn’t you do that?

A. Yes, I did.

Q. And didn’t he obtain a settlement or a payment for you?

A. Yes, he did.

Q. Would you want to tell the jury how much you were receiving in workmen’s compensation per month during that time?

A. Around $350 a month.

Q. Did you want to tell the jury how much you received in settlement at that time?

A. Well, it wasn’t too large after I paid my attorney.

Q. Just tell me the amount.

Plaintiff’s attorney: Now, just a minute. Let him answer. You asked the question.

The Court: Just a minute.

A. The question is the amount of settlement?

Q. Yes.

A. $10,000. After I had my attorney paid a third of the settlement, paid my workmen’s comp back, and paid all my medical bills, there wasn’t too much left any more.

Similar evidence was also admitted over objection in connection with plaintiff’s deduction of prior medical expenses on his income tax returns, as to whether they were paid by worker’s compensation, hospital insurance, or the plaintiff.

Appellees contend that the objections to these questions were not sufficient to preserve error, and that in any event they were properly overruled. Objections were not made as to every similar question regarding prior claims and the objections which were made were of a general nature, urging only that the answers sought were “irrelevant and immaterial.” The issue here is whether the objections made were sufficient. The objection “irrelevant and immaterial” is sufficient when admissibility of the evidence is attacked on either of those grounds. State v. Clay, 213 N.W.2d 473, 477 (Iowa 1973). A law review article by Dean Ladd was quoted in that ease, as follows:

While the wording [incompetent, irrelevant and immaterial] may appear to be a “catch-all,” it strikes basically at the materiality of offered proof and its relevancy. It is questionable whether other words could be more specific to raise these issues than those employed in the general objection. State v. Clay, 213 N.W.2d at 477, quoting Ladd, “Objections, Motions and Foundation Testimony,” 43 Cornell L.Q. at 546.

One reason for requiring a “specific” objection is that, in fairness to the trial court, it should know upon what ground the objector relies and should be given an opportunity to pass upon it. Floy v. Hibbard, 227 Iowa 149, 151, 287 N.W. 829, 830 (1939). In this case, the grounds urged for exclusion had been urged in a motion in limine which was argued and denied by the court before any of the questionable matters were presented to the jury. It is clear that the court and opposing counsel were aware of the grounds for complaint.

Those cases holding such evidence inadmissible have done so on grounds of relevancy. See, e. g., Alonza v. With, 214 Cal.App.2d 753, 760, 29 Cal.Rptr. 710, 714-5 (1963) and Ferriola v. Burdick, 146 Conn. 574, 577, 153 A.2d 319, 320 (1959). See also cases cited in Anno., “Cross-Examination— Previous Condition,” 69 A.L.R.2d 593 at 600. The objection “irrelevant and immaterial" was sufficient to preserve error as to evidence of prior claims by plaintiff.

Plaintiff did not repeat this objection as to all of the later questions on the same matters. However, once a proper objection has been urged and overruled, it is not required that repeated objections be made to questions calling for the same type of evidence. Lessenhop v. Norton, 261 Iowa 44, 55, 153 N.W.2d 107, 113 (1967); State v. Miller, 204 N.W.2d 834, 841 (Iowa 1973).

While evidence of prior injuries would clearly be admissible to show the extent, if any, to which they contribute to the plaintiffs present complaints, whether he may be cross-examined on the matter of claims for payment for prior injuries is not clearly established in Iowa.

We have adhered to the “collateral source” rule, prohibiting evidence of payments by a third party for the subject injury. See, e. g., Rigby v. Eastman, 217 N.W.2d 604, 609 (Iowa 1974); Clark v. Berry Seed Co., 225 Iowa 262, 271, 280 N.W. 505, 510 (1938). However, we have apparently never decided the issue of the admissibility of evidence of claims for prior injuries to the plaintiff.

Minnesota has permitted cross-examination on prior recoveries. See, e. g., Kelsey v. Chicago, R.I. & Pac. Ry., 264 Minn. 49, 117 N.W.2d 559, 563 (1962). California has permitted it in limited situations. See, e. g., LeBlanc v. Browne, 78 Cal.App.2d 63, 75, 177 P.2d 347, 354 (1947). In LeBlanc, the court admitted evidence of a prior settlement for injury to the same eye. The jury was instructed that this could be considered only as to the connection of the injury with her previous eye condition. It was also apparently in the nature of impeachment, the court stating that “the questioning objected to by appellants [plaintiffs] followed testimony by Mrs. White to the effect that she had had no trouble with her right eye prior to this accident and that her right eye had not been injured.”

In a later California case, Coleman v. Southern Pac. Co., 141 Cal.App.2d 121, 133, 296 P.2d 386, 394 (1956), defendant sought to use evidence of settlements by the plaintiff on prior injuries. The court, after noting LeBlanc, said:

Under these circumstances, [where plaintiff admits prior injury] the amount of the prior settlement is of so little materiality for the purpose of showing the extent of the prior injury that this ground must be considered fictitious and it is so prejudicial in confusing the issues that exclusion may well be required.

The court ordered a retrial, but left the door open for possible admission of this evidence because “the evidence on retrial may differ from that received at this trial.”

California has, therefore, adopted a case-by-case approach to admissibility. In Alonzo v. With, 214 Cal.App.2d 753, 760, 29 Cal.Rptr. 710, 714-5 (1963) the court said:

The issue at hand concerns the existence of a single or duplicate injury, rather than duplicate damages for a single injury. Whether or not the plaintiff’s present low back condition was caused by the 1957 accident or by the subject accident is neither proved nor disproved by the amount of the 1957 settlement. The order of the trial court excluding the testimony given was proper.

In Johnson v. Matson Navigation, 163 Cal.App.2d 336, 338, 329 P.2d 375, 376-7 (1958) the court said:

It may well have been error for respondent to ask appellant whether he made a claim and received money for the previous injury [authority], but these questions were not objected to by appellant, and the clearly erroneous question as to the amount of the settlement was asked by appellant’s own counsel. (Emphasis added.)

In Ferriola v. Burdick, 146 Conn. 574, 577, 153 A.2d 319, 320 (1959) the plaintiff admitted injuries in a prior accident. Questions asked over objection about the amount of recovery were held to be reversible error. The court said such testimony, not being proper for impeachment because plaintiff admitted the prior injury, was “completely irrelevant.”

Other jurisdictions have split on this issue. See Annot. “Cross-Examination — Previous Condition,” 69 A.L.R.2d 593.

We conclude that the better-reasoned authorities hold that evidence of the amount of prior settlements is inadmissible in the context of this case. There was no denial by plaintiff of any prior injuries. It is likely that the prior settlements included such items as loss of earnings and medical expense; and in the case of the plaintiff’s tort claim, the additional items of pain and suffering. None of these would have a direct bearing on what injuries plaintiff had suffered which were still in existence at the time of his last injury.

The size of any verdict or settlement may vary according to factors having no bearing on the extent of residual injuries. For example, close issues of liability might diminish the recovery; shocking acts of recklessness or negligence might increase them. Disputed legal issues and other obvious factors, such as the ability of the claimant’s attorney, could affect them.

The settlement figures brought out on cross-examination here were aggregations of all of these factors without any guidance for the jury to determine how much, if any, represented the residual injuries which defendants sought to establish. In addition to the lack of probative value of this evidence, it could cause a jury to consider plaintiff to be accident prone, or litigious, or both. Lowenthal v. Mortimer, 125 Cal.App.2d 636, 642-3, 270 P.2d 942, 945-6 (1954), concerned evidence of prior lawsuits by plaintiff. The court stated that “litigiousness, in the eyes of most people, reflects . . . upon character” and that “hostility [is] ordinarily felt against one who constantly requires services of a court of law for the adjustment of life’s problems.” The court held it was reversible error to allow evidence of the prior matters.

Appellees contend these matters could be properly admitted by the trial court in the exercise of its discretion as to the cross-examination, citing Uhlenhopp v. Steege, 233 Iowa 368, 7 N.W.2d 195 (1942) and State v. Carney, 236 N.W.2d 44 (Iowa 1975). These cases, however, recognize such discretion only as to the scope of cross-examination. They are not authority for a trial court’s allowance of irrelevant evidence. We said in Carney that “[a] reasonable latitude must be accorded a cross-examiner but the scope thereof as to any proper subject of inquiry rests generally in the trial court’s sound discretion.” (Emphasis added.) State v. Carney, 236 N.W.2d at 46. Recoveries for prior injuries here were not proper areas of inquiry, and could not be made so by the court even in the exercise of its discretion.

In Eichel v. New York Cent. R.R., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963), the defendant sought to show plaintiff’s receipt of pension payments “for the purpose of impeaching [plaintiff’s] testimony . as to his motive for not returning to work and as to the permanency of his injuries.” Although this was a “collateral source” case, i.e., the third-party payments made were for the subject injury, the Supreme Court’s language regarding probative value and prejudice is appropriate here. It said:

In our view the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension. 375 U.S. at 255, 84 S.Ct. at 317, 11 L.Ed.2d at 309.

Receipt of such evidence was held to be reversible error.

We adopt this reasoning as to the present case. Other evidence of pre-existing injuries with more probative value, e. g., medical testimony, would generally be available, and would involve less likelihood of prejudice. We hold it was error to admit the evidence of prior claims, settlements and worker’s compensation here.

The verdict of the jury, while it was for plaintiff, was for less than the amount of his claim for lost income and medical expense prior to trial. Under this record, there is sufficient likelihood of prejudice to plaintiff to require granting a new trial.

The case is therefore reversed and remanded for a new trial.

REVERSED AND REMANDED.

All Justices concur except UHLEN-HOPP, LeGRAND and ALLBEE, JJ., who dissent.