Opinion
No. 3-295 / 02-1183.
Filed June 25, 2003.
Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson, Judge.
Plaintiffs appeal the district court order denying their motion for judgment not withstanding the verdict or new trial. AFFIRMED.
Joseph J. Bitter of Bitter Law Office, Dubuque, for appellants.
Leslie M. Blair, III of Blair Fitzsimmons, P.C., Dubuque, for appellee.
Heard by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Plaintiffs Raymond and Shirley Bechen appeal the district court order denying their motion for judgment not withstanding the verdict or new trial. They contend the jury's verdict is contrary to the evidence. We affirm.
I. Background Facts and Proceedings. On the afternoon of April 29, 2000, Job Francis was returning home from work when he encountered his neighbors, Raymond and Shirley Bechen, sitting in lawn chairs in their front yard. The Bechens and Francis have been neighbors for nearly thirty years, although it appears the relationship between the parties has deteriorated over the last ten years. On the day in question, Francis parked his car in the street and was walking up the driveway to his house when Shirley Bechen called to him, "You'd better watch out, Big Mama's on the war path." This comment presumably was a reference to Francis's wife, Connie. Francis yelled back, "So what?" which prompted Raymond Bechen to insult Francis. Francis responded in kind. Bechen and Francis then walked to the street and a fistfight ensued between sixty-two year-old Bechen and fifty-nine year-old Francis.
The parties disagree over the details of the battle. What is not in dispute is that Bechen suffered bruises to his face and shoulder, as well as a broken cheekbone. The Bechens incurred medical expenses in excess of ten thousand dollars.
On March 14, 2001, the Bechens sued Francis for assault and battery. In addition to compensatory damages, the Bechens sought punitive damages and damages for loss of consortium. Following an April 2002 trial, the jury returned a verdict by special interrogatory, finding Francis had struck Bechen but had not intended to cause injury. The petition was dismissed at the Bechens' expense. On April 22, 2002, the Bechens filed a motion for judgment not withstanding the verdict or new trial, which the district court denied on July 11, 2002.
II. Scope of Review. We review a district court's denial of a motion for directed verdict and motion for judgment notwithstanding the verdict for correction of errors at law. Iowa R.App.P. 6.4. Ours tandard of review of a denial of a motion for new trial depends upon the grounds for new trial asserted in the motion and ruled upon by the court. Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 859 (Iowa 2001). In ruling upon motions for new trial the trial court has a broad but not unlimited discretion in determining whether the verdict effectuates substantial justice between the parties. Iowa R.App.P. 6.14(6)( c).
III. Analysis. The Bechens contend the district court erred in denying their motion for judgment notwithstanding the verdict or new trial because the verdict is not supported by substantial evidence. In reviewing denial of a motion for judgment notwithstanding the verdict, we consider whether the evidence, when viewed in the light most favorable to the nonmoving party, shows that the movant was entitled to a directed verdict at the close of all the evidence. Lamb v. Manitowoc Co., 570 N.W.2d 65, 67-68 (Iowa 1997).
We conclude substantial evidence supports the jury's verdict. Evidence is substantial to support a jury verdict if reasonable minds would find it adequate to reach the same conclusion. Condon Auto Sales Service, Inc. v. Crick, 604 N.W.2d 587, 593 (Iowa 1999). The parties presented differing versions of the incident. The Bechens contend Francis was the aggressor, pushing Ray Bechen before punching him in the face. In contrast, Francis contends Ray Bechen tried to strike him first, after Francis tried to put a little distance between the two men by giving Bechen a push. Francis claims he struck Ray Bechen twice while retreating, and that Bechen had kicked him and tried to punch him. When evidence is in conflict, we entrust the weighing of testimony and decisions about the credibility of witnesses to the jury. Seastrom v. Farm Bureau Life Ins. Co., 601 N.W.2d 339, 346 (Iowa 1999).
The jury was instructed pursuant to Uniform Iowa Civil Jury Instruction 1900.3 regarding the elements of battery. Instruction number eleven sets forth these elements:
In order to prove the claim of battery, plaintiffs must prove all of the following propositions:
1. Job Francis struck Raymond Bechen.
2. The striking was done with the intent to cause physical pain or injury to Raymond Bechen or to be insulting or result in offensive contact.
3. At least one blow of Job Francis resulted in pain or injury to Raymond Bechen.
4. At least one blow of Job Francis proximately caused damage to the plaintiffs.
5. The amount of damage.
The first question on the jury verdict form read, "Did Job Francis strike Raymond Bechen?" To this question, the jury answered, "Yes." The second question read, "Was the striking done with the intent to cause physical pain or injury or to be insulting or result in offensive physical contact with Raymond Bechen?" The jury answered, "No." Accordingly, the jury did not answer any further questions and signed the verdict.
In denying the Bechens' motion for judgment notwithstanding the verdict or new trial, the district court found as follows:
The jury's verdict could result from a failure to believe the plaintiff's version of how the physical contact occurred. The jury could have believed that the plaintiff was the aggressor and that any striking of the plaintiff by the defendant was unintentional in the course of warding off the plaintiff's assault. The verdict is also consistent with a jury not being sure whom to believe. Under these circumstances, the question would be answered no because the burden of persuasion is the plaintiff's.
It is not true that every striking that occurs must, necessarily, be with the intent to cause physical pain or injury or to be insulting or offensive. If that were true, we would need only one element of the tort, not two. There was no stipulation or agreement that the second element was met. Given the contested nature of the case, the Court cannot conclude that the jury behaved unreasonably in finding that the second element was not proved.
We concur with the district court's reasoning. Conflicting evidence was presented at trial. Viewing the evidence in a light most favorable to upholding the verdict, a reasonable person could conclude Francis did not intend to fight Bechen when he went to the street. Further, it could be determined that any blows Francis landed on Bechen occurred when Francis was attempting to put more space between them or while fending off Bechen's attacks. Finally, the jury could conclude Bechen's injuries were the result of falling against his truck, as he told the doctor. Accordingly, we conclude the district court properly denied the Bechens' motion for judgment not withstanding the verdict or new trial.
The Bechens argue the district court should not have instructed the jury that intent to cause physical pain or injury, or to be insulting or result in offensive physical contact, was required. The only objection the Bechens lodged to the pertinent portion of instruction eleven was to request inclusion of the language "or to be insulting or result in offensive physical contact." The Bechens did not object to instructing the jury as to the intent element of battery, nor did they raise this issue in their motion for judgment notwithstanding the verdict or new trial. As this issue has not been previously raised, we do not consider the argument on appeal. See Podraza v. City of Carter Lake, 524 N.W.2d 198, 203 (Iowa 1994).
Because substantial evidence supports the jury's verdict, we affirm the district court's order denying the Bechens' motion for judgment notwithstanding the verdict or new trial.