Thuente v. Hart Motors

Plaintiff's petition sought damages in the sum of $2,449.65 for personal injuries received while riding on a truck owned by defendant, of which $449.65 was sought for hospital and medical care and supplies, $1,500 for pain, suffering, and mental anguish in the past, and $500 for pain, suffering, and mental anguish in the future; plaintiff also demanded the costs of the action. Count I of the petition predicated liability on the ground of negligence of the driver of defendant's truck. Count II predicated liability on the ground of recklessness of the driver of the truck. Defendant moved the court to require the plaintiff to elect on which cause of action he proposed to proceed. This motion was overruled without prejudice should defendant wish to raise the question during the trial.

At the close of plaintiff's evidence in chief defendant moved the court to withdraw from the consideration of the jury and to direct a verdict in favor of the defendant on Count I of the petition because the evidence showed that plaintiff was at most only a guest and as such defendant would not be liable to plaintiff for negligence. This motion was sustained and the trial proceeded on Count II of the petition. At the close of all of the evidence defendant moved for a directed verdict as to said Count II on the ground that the evidence failed to show recklessness. This motion was overruled. The jury returned a verdict in favor of plaintiff for $1,200. Judgment was entered thereon, from which defendant appealed to this court. Plaintiff also perfected a cross-appeal from the order which withdrew Count I of his petition from the consideration of the jury.

At the time that the record was settled it was stipulated that the only question to be raised by defendant on appeal was that the court erred in overruling its motion for directed verdict, which challenged the sufficiency of the evidence to show recklessness, and that the only question to be raised by plaintiff was that the court erred in refusing to submit his cause on the theory of negligence. We are of the opinion that there is merit in each appeal.

I. We will first consider the defendant's appeal. Plaintiff was a pharmacist, age forty-two, and on October 13, 1942, volunteered to assist in the local scrap drive sponsored by the Spencer Junior Chamber of Commerce. He and a number of other men were on a Ford truck, owned by defendant partnership and operated by one of the partners. They picked up some old motors, steel girders, etc., which were delivered and unloaded. They then picked up a heavy tank, about four feet long and a foot and a half in diameter, weighing from eight hundred to one thousand pounds, and a quantity of wire. At a collecting station they unloaded the wire but not the tank. They then proceeded south on a paved highway out of Spencer past Leach Field, used as a park and athletic field, and made a right-hand turn off the pavement onto a graveled road to the west. As the truck made the turn, the rack or body of the truck tipped and became separated from the rear end of the chassis. The chassis and cab of the truck did not upset. Plaintiff jumped or was thrown from the truck and was injured.

Plaintiff testified:

"I was looking around and more or less talking. Everybody was talking to each other. There was nothing unusual that I recall."

Asked as to the speed of the truck, he answered:

"I don't really know well enough because I wasn't paying enough attention. I can't say how fast we were going."

One witness for plaintiff testified that the truck approached the corner at a speed of from thirty to thirty-five miles an hour and did not slow down appreciably before it reached the corner. Another testified that the truck was traveling twenty-five to thirty miles an hour and slowed down one or two miles as it approached the corner. Another placed the speed at thirty to thirty-five miles an hour and that it slowed down about five miles an hour for the turn. Another of plaintiff's witnesses placed the speed of the truck at about twenty miles an hour when it made the turn and that there had been quite a decrease in its speed. Another testified that the speed was twenty-five to thirty miles an hour and that the driver took his foot from the accelerator as he approached the corner but did not apply his brakes, reducing the speed to from twenty to twenty-seven miles per hour; after the rack started to tip the truck was stopped suddenly. Another witness testified that the speed of the truck was thirty-five miles an hour and that it "kind of skidded around the corner." Another witness placed the speed of the truck at thirty-five miles an hour.

The truck had been purchased by defendant about seven days before the accident. The rack was bolted on with two U-bolts, one in front and one in the rear. After the accident the front bolt still held. The rear bolt was missing and was not found at the scene of the accident.

The testimony offered by defendant created a sharp conflict in the evidence as to the speed of the truck, some of it placing the speed of the truck as it made the turn at fifteen miles per hour or less. But it was for the jury to decide as to the credibility of the witnesses. We must view the evidence in the light most favorable to the plaintiff.

The specifications of recklessness asserted in the petition were as follows:

"a. Driving the truck at a speed greater than was reasonable and proper having due regard for the fact that he was turning off a paved highway on to a graveled highway and also having regard for the fact that the box or rack contained a cylinder as above set out weighing 1,000 pounds or more and that some of the occupants of the box or rack were sitting upon the top rail thereof.

"b. Driving said truck at a speed of thirty-five miles per hour under the conditions as herein set forth while making the turn as herein set out.

"c. In failing to keep said vehicle under control and reduce the speed to a reasonable and proper rate while making a sharp turn as herein set out."

Some doubt arises whether the foregoing allegations state a case of recklessness. But, in any event, the evidence introduced in support of them created nothing more than a jury question on an issue of negligence. We have often held that recklessness is something more than negligence and that proof of negligence alone will not permit a recovery under section 5037.10, Code, 1939, formerly section 5026-b1, Codes, 1935, 1931, 1927. The following cases are illustrative: Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46; Neessen v. Armstrong, 213 Iowa 378, 239 N.W. 56; Wilde v. Griffel, 214 Iowa 1177, 243 N.W. 159; Levinson v. Hagerman, 214 Iowa 1296, 244 N.W. 307; Welch v. Minkel, 215 Iowa 848, 246 N.W. 775; Koch v. Roehrig, 215 Iowa 43, 244 N.W. 677; Phillips v. Briggs, 215 Iowa 461, 245 N.W. 720; Shenkle v. Mains, 216 Iowa 1324, 247 N.W. 635; Petersen v. Detwiller, 218 Iowa 418, 255 N.W. 529; Stanbery v. Johnson,218 Iowa 160, 254 N.W. 303; Paulson v. Hanson, 226 Iowa 858, 285 N.W. 189; Scott v. Hansen, 228 Iowa 37, 289 N.W. 710; Roberts v. Koons, 230 Iowa 92, 296 N.W. 811; Peter v. Thomas, 231 Iowa 985,2 N.W.2d 643; Harvey v. Clark, 232 Iowa 729, 6 N.W.2d 144, 143 A.L.R. 1141; Tomasek v. Lynch, 233 Iowa 662, 10 N.W.2d 3.

The rules announced and applied in the foregoing decisions of this court are well known to the bench and bar. It is not necessary to here elaborate upon them. Application of them to the facts of record herein, when taken in the light most favorable to the plaintiff, demonstrates that the defendant's motion for a directed verdict on Count II of the petition should have been sustained. The court erred in overruling it. The defendant's assignment of error in this court is well taken and must be sustained.

II. Plaintiff's assignment of error is submitted to us as an alternative proposition. Plaintiff seeks to sustain the ruling of the trial court on the motion for directed verdict as to Count II and asserts that, if such ruling is to be reversed, then the trial court erred in withdrawing from the consideration of the jury Count I of plaintiff's petition which predicated liability on the ground of negligence in the operation of defendant's truck. As we have sustained defendant's assignment of error as to the disposition of Count II of the petition, it now becomes our duty to consider the cross-appeal of plaintiff.

The high lights of the evidence have been reviewed by us in Division I of this opinion, supra. Further elaboration at this point would not seem necessary. We are satisfied that the evidence, when viewed in the light most favorable to the plaintiff, presented a disputed question of fact sufficient to require submission to the jury of the issue whether defendant's truck was operated at a reasonable rate of speed and with due care for the safety of those riding thereon when attempt was made to negotiate the turn to the right at the time when plaintiff received his injuries. Defendant asserts that plaintiff knew all of the circumstances under which he was riding on the truck, made no objection thereto, and assumed the risk of injury therefrom. But, were the jury to find defendant guilty of negligence, the evidence would warrant a further finding that the negligence which was the proximate cause of plaintiff's injury was of an unexpected nature and of such short duration that plaintiff could not be deemed to have acquiesced therein for such a length of time as to be said to be guilty of contributory negligence as a matter of law. See Miller v. Mathis, 233 Iowa 221, 8 N.W.2d 744. If liability is to be predicated herein on negligence, defendant's negligence and plaintiff's freedom from contributory negligence were issues that should have been submitted to the jury.

The trial court, having considered the evidence sufficient to present a jury question on the issue of recklessness, obviously considered that there was sufficient evidence to warrant a finding of negligence on defendant's part. The court withdrew Count I of the petition from the consideration of the jury on the theory that the evidence showed, as a matter of law, that plaintiff was "riding in said motor vehicle as a guest or by invitation and not for hire," within the contemplation of section 5037.10 of the Code, so that he could only recover by showing that he was injured because of the reckless operation of defendant's truck. The court erred in so holding.

The trial court based its ruling on the case of Park v. National Casualty Co., 222 Iowa 861, 270 N.W. 23. That case is not in point. In that case the plaintiff, Park, was injured while riding in an automobile owned by one Craig. Park recovered judgment against Craig in an action predicated on negligence in the operation of the vehicle and then sued the National Casualty Company as Craig's insurance carrier. The company defended on the ground that, since Park and Craig were members of an orchestra and were proceeding to fill a business engagement as such and Craig was being reimbursed for the use of the automobile on such enterprise, the vehicle was being used for the purpose of carrying passengers for a consideration, which rendered the insurance protection unavailable under an exclusion clause in the policy. This court held that the exclusion clause of the policy was not controlling. The case did not involve any interpretation of section 5037.10 of the Code, 1939 (then section 5026-b1, Code, 1935). The case is not in point here because there is no contention that defendant was carrying any passengers for hire. The question here is whether plaintiff is a "guest" within the contemplation of section 5037.10.

The trial court also relied upon the case of Brown v. Branch,175 Va. 382, 9 S.E.2d 285. In that case the defendant was the superintendent of a Sunday School and offered the use of his truck free of charge to conduct members and their guests to and from a Sunday School picnic. On the return trip after the picnic, the truck ran off the road into the ditch and plaintiff, who was then riding thereon, was injured. The issue, under the Virginia statute, was whether plaintiff was a "pay passenger" or a gratuitous guest. The court held that defendant was to receive no remuneration for the use of his truck and that the plaintiff was a gratuitous guest. We do not think that the decision is in point here because we feel that there is an important difference between a purely social enterprise, such as a Sunday School picnic, and a patriotic and community enterprise, such as the local scrap drive involved herein.

The general principles usually applied in defining a guest under the various guest statutes are thus stated in 4 Blashfield, Cyclopedia of Automobile Law and Practice, section 2292, to wit:

"In determining who are ``guests' within the meaning of automobile guest statutes, the enactments should not be extended beyond the correction of the evils which induced their enactment.

"One important element in determining whether a person is a guest within the meaning and limitations of such statutes is the identity of the person or persons advantaged by the carriage. If, in its direct operation, it confers a benefit only on the person to whom the ride is given, and no benefits, other than such as are incidental to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes; but, if his carriage tends to the promotion of mutual interests of both himself and the driver and operates for their common benefit or if it is primarily for the attainment of some objective or purpose of the operator, he is not a guest within the meaning of such enactments. Of course, a passenger for hire is not within their operation, regardless of whether the passenger or some one else pays or promises to pay for the transportation.

"The fact that it is contemplated that some indirect benefit will accrue to the operator of the automobile, to which the carriage will have in some degree contributed collaterally or by way of inducement, is not sufficient to make the carriage one for mutual benefit within the rule as stated."

In the Pocket Supplement, 1944, the foregoing statement is amplified thus:

"In other words, the term ``guest,' as it is ordinarily used in automobile guest statutes, imports that the occupant referred to is the recipient of the owner's or driver's hospitality. And a person enjoying this hospitality, and riding in an automobile either for his own pleasure or on his own business, without making any return therefor or conferring any benefit on the driver other than the mere pleasure of his company, is a ``guest.' On the other hand, a person who renders value received, or gives such recompense as to make it worth the driver's while to give the ride, is a ``passenger.' * * *

"Otherwise stated, the benefit accruing to or conferred upon the operator of the vehicle, sufficient to take the person riding with him out of the guest class, must be a tangible one growing out of a definite relationship. It is not necessary, however, that it be a consideration agreed upon for the transportation, and it may be in the form of anticipated profit as well as a direct return."

In line with the foregoing statements, in the case of Forsling v. Mickelson, 66 S.D. 366, 283 N.W. 169, it was held that where a musician, who had volunteered his services for a booster trip to advertise a community enterprise called the "Corn Carnival," was being transported in an automobile donated for the purpose by a public-spirited businessman, the musician was not a "guest" of the businessman under the guest statute. In Boysen v. Porter, 10 Cal. App. 2d 431, 52 P.2d 582, an employee of a committee organized to elect a candidate for mayor of Los Angeles was riding in a truck, which had been donated with a driver for the service of the committee, when injured, and was held not to be a "guest" of the owner of the truck. In Arkansas Valley Co-op. Rural Elec. Co. v. Elkins, 200 Ark. 883, 141 S.W.2d 538, an employee of a rural electric company asked a farmer to ride in a company car to determine where light poles should be placed on the farm and it was held that the farmer was not a "guest" of the electric company. In Delk v. Young, Ohio App., 35 N.E.2d 969, a supporter of a candidate for sheriff accompanied him to a public meeting and it was held that the supporter was not a "guest" of the candidate.

While we do not find any analogous cases among the decisions of this court, it is apparent that the general principles applied in the foregoing decisions have been recognized and applied by this court. In Bookhart v. Greenlease-Lied Motor Co., 215 Iowa 8, 244 N.W. 721, 82 A.L.R. 1359, a prospective buyer of an automobile, who on invitation from a salesman entered the car to observe its performance, was held not to be a guest. In Thompson v. Farrand,217 Iowa 160, 165, 251 N.W. 44, a lawyer's client who went with him on a trip to Ottumwa, stopping off at Pella to attend to some business, was held not to be a guest. In Knutson v. Lurie,217 Iowa 192, 251 N.W. 147, we held that it was a disputed question of fact for the jury to determine whether a domestic servant was riding in her employer's car as a guest or as a servant. In Porter v. Decker, 222 Iowa 1109, 1111, 270 N.W. 897, we held that it was a jury question whether a young man who accompanied a truck driver on a trip to Omaha was to perform acts of assistance in loading and unloading the truck so as to obviate the guest statute. In Wittrock v. Newcom, 224 Iowa 925, 930, 277 N.W. 286, we held that a young lady's presence in an automobile demonstrator with the salesman and a prospect was sufficiently identified with the attempt to sell the car so that she was not a guest. In Doherty v. Edwards, 227 Iowa 1264, 1269, 290 N.W. 672, we held that, where a representative of the FRA took a borrower in his car to arrange for some money for feed, the borrower was not a guest. In Mitchell v. Heaton,231 Iowa 269, 276, 1 N.W.2d 284, 138 A.L.R. 832, we held that a friend of a prospective purchaser, who accompanied the two negotiating parties, was in the car for the benefit of both parties to the negotiations and was not a guest.

By reason of the foregoing, we hold that the trip which plaintiff made in defendant's truck was not a social or gratuitous trip such as contemplated by the guest statute. Plaintiff and defendant were engaged in a patriotic, community project to aid the war effort. Defendant furnished a truck and a driver. Plaintiff was one of those who furnished physical labor required to load and unload the truck. The purpose of each was to aid the defense of his country. The trip was advantageous to each in the accomplishment of their mutual enterprise. The guest statute does not apply. The court erred in holding that it does. Plaintiff's assignment of error in this court is well taken and must be sustained.

Accordingly the cause is — Reversed and remanded on both appeals.

SMITH, MULRONEY, OLIVER, BLISS, GARFIELD, HALE, and WENNERSTRUM, JJ., concur.

MANTZ, C.J., dissents.