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Meyer v. City of Des Moines9/18/1991
(Iowa 1983) (scope of review on bifurcation is abuse of discretion).
IV. Sufficiency of the Evidence
Contrary to the defendants' contention, we find that there was substantial evidence to support the jury's apportionment of fault. There was substantial evidence on specifications of negligence other than Specification 3 in Instruction No. 8. The district court properly submitted the case to the jury on these specifications in the liability phase.
V. Costs
In the damage phase, the Meyers called two medical doctors. The district court taxed as costs against the defendants expert witness fees of $500 for each doctor. The defendants claim this was more than the limit of $150 provided in Iowa Code section 622.72. We agree.
Court costs are taxable only to the extent provided by statute. Schark v. Gorski, 421 N.W.2d 527, 528 (Iowa 1988). Two statutes control here: Iowa Code section 622.69 and section 622.72.
Section 622.69 is the general statute on witness fees. It provides that
itnesses shall receive ten dollars for each full day's attendance, and five dollars for each attendance less than a full day, and mileage expenses....
Section 622.72 is a special statute relating to experts:
Witnesses called to testify only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations and state the result thereof, shall receive additional compensation, to be fixed by the court, ... but such additional compensation shall not exceed one hundred fifty dollars per day while so employed.
(Emphasis added.)
Construing the two statutes together as we must, we think a reasonable construction is this: a witness called to give an expert opinion is entitled to the fee and mileage indicated in section 622.69 and in addition is entitled to a maximum of $150 per day. See Snyder v. Iowa City, 40 Iowa 646, 647-48 (1875) (construing predecessor to section 622.72 and holding that physicians summoned as witnesses are not entitled to extra compensation under the statute unless called to testify as experts).
Under our construction of section 622.72, the district court was only allowed to tax as costs as to each doctor the ordinary fee under section 622.69 and, in addition, no more than $150 under section 622.72. Taxation of costs in excess of those amounts was error.
The district court also taxed as costs a total of $133.50 for the Meyers' copies of three depositions. These copies were not the originals of the depositions. Two of the depositions were not introduced at trial. The other deposition was admitted but it was the original paid for by the defendants. The Meyers concede that only the costs of depositions introduced into evidence are taxable as costs. See Woody v. Machin, 380 N.W.2d 727, 730 (Iowa 1986); Iowa R.Civ.P. 157. The district court erred in taxing costs for the three copies against the defendants.
We have considered all the arguments and contentions of the parties whether or not discussed. Those not discussed we reject as lacking merit.
VI. Disposition
In the liability phase, the district court erred in giving an instruction based on Iowa Code section 321.275(4) (depriving a moped operator of the full use of a lane). Under the evidence in this case, the instruction did not apply. Because of this error, we reverse and remand for a new trial.
The defendants were not entitled to an instruction on their theory of impossibility under the legal excuse doctrine. Instruction No. 16 adequately covered the defendants' theory of legal excuse.
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