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BIGALK v. BIGALK11/22/1995
tiff with respect to the challenged statement was improper. On the record before us, we are unable to agree with that conclusion.
The only way in which the statement is claimed to be incomplete is that it did not include plaintiff's expression of reluctance to speak to the claims representative allegedly made before the recorder was turned on. But, assuming that plaintiff did express such reluctance, the fact remains that she did give a lengthy and complete statement to the claims representative. The contents of this statement include relevant information concerning plaintiff's knowledge of the hazard. Thus, the statement is more than impeachment. It is an admission by a party opponent. See Iowa R.Evid. 613(b), 801(d)(2). Contents of recordings may be proved by the testimony of the person against whom they are offered. Iowa R.Evid. 1007.
The facts surrounding plaintiff's physical condition and state of medication at the time the statement` was given were, we believe, matters that go to the weight of the evidence and not to its admissibility. Consequently, under Iowa Rule of Evidence 403, its admissibility was within the sound discretion of the trial court. See Carter v. MacMillan Oil Co., 355 N.W.2d 52, 55 (Iowa 1984). We conclude that there was no abuse of that discretion in permitting the jury to hear this evidence.
III. Other Issues.
Other issues considered by the court of appeals included claims that a directed verdict should have been granted and that the jury should have been instructed concerning the doctrine of res ipsa loquitur. The court of appeals found no merit in either of these contentions, and neither do we.
We have considered all issues presented and conclude that the decision of the court of appeals should be vacated with respect to the issue of cross-examining plaintiff concerning the tape recording, but otherwise affirmed. Our decision shall be the law of the case with respect to the evidentiary issues involving the tape recording. The judgment of the district court is reversed. The case is remanded to that court for a retrial of all issues.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.
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