Rainsbarger v. Shepherd , 254 Iowa 486 ( 1962 )

Garfield, C. J.

(dissenting) — I must dissent.

This is a synopsis of the evidence on the point at issue: “I went down the walk to the car and took hold of the handle of the door and opened it and pushed it back. * # * when I did that he started the car up and it was in reverse and it come back and knocked me down. * * * The car door certainly hit me. * * * I was holding onto the door. * * * I was going to get in and we was going over to my nephew’s. Just before * * * the car started to back up Tom * * * was looking at the * * * outside car lights. * * # The car was not running when I opened the door. * * * I hit the ground when I fell. I landed on my back.”

Our guest statute, Code section 321.494, applies “to any passenger or person rid/mg in said, motor vehicle as a guest or by invitation and not for hire.” (Emphasis added.)

The grounds of defendant’s motion for directed verdict, which the majority holds should have been sustained, are in substance and effect that as a matter of law plaintiff was a guest or person riding by invitation m the automobile of defendant. To hold that common sense leads to the conclusion plaintiff as a matter of law was riding in defendant’s motor vehicle at the time she was injured is obvious error. There is no evidence plaintiff was “riding in said motor vehicle.” Indeed there is no evidence she was “riding” nor that she was “in said motor vehicle”, under any fair meaning of these words.

The practical effect of the majority’s holding is to read out of our guest statute the language “riding in said motor vehicle.” This is done under the guise of liberal construction of the statute. “There are bounds beyond which the doctrine of liberal construction of statutes may not lead us. It is subject to the principle that all rules of statutory construction are merely for the purpose of ascertaining legislative intent. It does not authorize us to change the reasonable meaning of the language of the statute [citations].” Bergeson v. Pesch, 254 Iowa 223, 228, 117 N.W.2d 431, 434.

A cardinal rule of statutory construction repeatedly recognized by us is that effect will be given if possible to every word of a statute. It is presumed the legislature inserted every part for a purpose. The majority has no right to read the quoted words out of our guest statute.

Unquestionably under any fair view of the evidence plaintiff had a right of action at common law against defendant for negligence. We have held several times “the rule is well established that a statute will not be construed as taking away a common-law right unless that result be imperatively required.” Hardwick v. Bublitz, 253 Iowa 49, 59, 111 N.W.2d 309, 314, cited by the majority, holds this rule is applicable to a claim our guest statute lias taken away a common-law right of action. We have also held the rule is applicable to a claim the Workmen’s Compensation law has taken away a common-law action. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 388, 101 N.W.2d 167, 174. And of course the compensation Act must be liberally construed. Certainly the language of the guest statute does not imperatively require the majority’s holding that plaintiff is deprived of her common-law action.

Puckett v. Pailthorpe, 207 Iowa 613, 617, 618, 223 N.W. 254, 256, cited by the majority, is more like the present case on its facts than any other Iowa case. It holds plaintiff there was not a guest. The majority brands the following language as dicta although it is nothing of the kind:

“Plainly, a passenger, under this legislation, signifies one who is on a journey or trip, riding, without fare, in a motor vehicle operated by a driver. * * * Moreover, the one who is called a ‘passenger’ must be riding in the car. To place emphasis upon this interpretation, the legislature confined the passenger or person named in the section to one who is ‘riding in’ a motor vehicle ‘as a guest or by invitation, and not for hire.’ Then, if such ‘guest or person’ is not ‘riding,’ the statute under consideration has no application. ‘Riding’ modifies both passenger and person.

“When did the statute intend one to be ‘riding?’ More is required than merely entering the conveyance. Entrance must be made into an automobile then in the operation of a driver, so that a journey can be taken.”

The construction of our guest statute so clearly enunciated in Puckett v. Pailthorpe has stood for nearly 34 years. Most of the language just quoted is adopted as the basis for our decision in Samuelson v. Sherrill, 225 Iowa 421, 280 N.W. 596. Shinofield v. Curtis, 245 Iowa 1352, 1356, 66 N.W.2d 465, 468, 50 A. L. R.2d 964, quotes with approval this from the Puckett decision: “Then, if such ‘guest or person’ is not ‘riding,’ the statute * * * has no application.”

I think the construction these three Iowa decisions give our guest statute is sound. I would adhere to them. No Judge dissented from any of them. Such construction gives effect to the language of the statute "riding in said motor vehicle”, in obedience to a fundamental rule of statutory construction. It also does not violate our recently adopted rule 344(f) 13: “In construing statutes the courts search for the legislative intent as shown by what the legislature said, rather than what it should or might have said.”

If the guest statute is to be extended it is the function of the legislature to do it. The majority should not do so under the guise of liberal construction.

Of course I would affirm.

Thornton, J., joins in this dissent.