Allbaugh v. Ashby , 226 Iowa 574 ( 1939 )

I find myself unable to agree with the opinion and respectfully dissent.

The reversal is based upon the instruction given by the trial court. Because the instruction may be erroneous does not in my humble judgment always mean that it constitutes prejudicial error or requires a reversal of the case. The record in this case shows without any question that the son had the consent of the father to drive the car, even the majority admit that. I quote:

"Moreover it appears that although the father may have desired that the son secure his consent to use the car for pleasure trips, no such consent was actually required, that the son had general consent to use the car and did habitually drive when and where he fancied."

Certainly in face of such a record no jury could have possibly been misled by the instructions given whether it may have been an erroneous statement of the law. Instructions are for the purpose of assisting the jury and not to be used after an adverse decision in a technical manner for the purpose of securing a reversal. Unless the instruction was prejudicial reversal should not be granted. Justice Weaver in the case of Elliott v. State Bank, 149 Iowa 309, 319, 128 N.W. 369, 372, speaking for this court said:

"We think it must be said that no set of instructions ever yet framed by a trial court could stand the test of an appeal if the severely critical and technical tests for which appellant contends were to be adopted and enforced by us.

"Instructions are of necessity prepared under more or less pressure to avoid interference with the progress of the business of the term.

"They are addressed to jurors unskilled in law and unversed in legal phraseology. * * * The standards by which instructions are to be judged are not those which might properly be applied to a technical treatise prepared for the use of the profession."

I would affirm the decision of the lower court.