Sexton v. Lauman, 48074

Citation244 Iowa 570,37 A.L.R.2d 353,57 N.W.2d 200
Decision Date10 March 1953
Docket NumberNo. 48074,48074
Parties, 37 A.L.R.2d 353 SEXTON v. LAUMAN et al.
CourtUnited States State Supreme Court of Iowa

John D. Randall and Richard F. Nazette, of Cedar Rapids, for appellants.

Will J. Hayek, of Iowa City, and Lambach, Kopf & Berger, of Davenport, for appellee.

MULRONEY, Justice.

Glenn Cullen, a student at the State University of Iowa, possessed a Hudson touring car. On the evening of January 10, 1947 he and five fellow students drove to Hills, Iowa, a little town about six miles south and west of Iowa City on paved highway 218. Glenn drove the car on the trip to Hills and driving conditions were good and the pavement was dry. By the time the boys were ready to start back about 11:30 P.M., the weather had changed and the pavement was icy and slippery. James Lauman drove the car on return trip but Glenn Cullen sat in the front seat with him and he told Lauman not to drive over thirty-five miles an hour. When Lauman drove around a curve at the top of a long hill, called Indian Lookout Hill, the car would not straighten up and it started sliding sidewise down the hill. It continued sliding in a sidewise position, with the rear end over the center about four feet, until it collided with the car in which Clark Sexton was a passenger, traveling up the hill.

The Hudson automobile was registered in the name of Nelle Cullen, an aunt of Glenn Cullen, and Sexton filed suit on January 9, 1949 against James Lauman, Glenn Cullen and Nelle Cullen for personal injuries and damages sustained in the collision. He alleged negligent operation of the Hudson car owned by Glenn and Nelle Cullen and that the car was being driven with their knowledge and consent. The trial court submitted the case to the jury with three forms of verdicts, in one of which the jury could return a verdict against the driver and the defendant Glenn Cullen if the jury found Glenn Cullen 'was the owner or part owner' of the Hudson car. In the second form of verdict the jury could return a verdict against all of the defendants if they 'should find that defendant Nelle Cullen was the owner or part owner' of the Hudson car. In the third form of verdict the jury could find for the defendants if they found plaintiff was not entitled to recover. The jury used the second form of verdict, finding for plaintiff against all of the defendants and assessed his recovery at $3300 and defendants appeal from the judgment entered thereon.

I. The first assignments of error deal with questions of ownership of the Hudson car and consent to Lauman's driving it on the night of the accident. Glenn Cullen testified he bought the car in June, 1946. The car was registered in Nelle Cullen's name and re-registered by Glenn in January, 1947 in her name. It was registered in Nelle Cullen's name at the time of the accident but Glenn said he was the owner of the car and his explanation of the registration in his aunt's name was as follows: 'Well, when I got out of the Army and I came home you couldn't buy a car any place and if you did find one to buy it would cost you about four or five hundred dollars more than it was supposed to, and my aunt's name was first on this list so she let me buy the car and the car dealer wanted to put it in her name and he asked me not to get it transferred for four or five months, so I just never did after that because I wasn't around--well, the county seat town is Storm Lake and I just never was around there.'

Nelle Cullen filed a separate answer in the case denying that she was the owner of the car and denying that Lauman was at any time driving any car owned by her, with her knowledge and consent. Nelle Cullen did not testify in the case.

There is no question at all about the correctness of the submission of the case for a finding against Glenn Cullen on the issues of ownership and consent. He said he owned the car and admitted Lauman was driving under his directions. The question is as to the submission of the case for a possible finding against Nelle Cullen that she was an owner or part owner of the Hudson car and that she consented to its operation by Lauman. We will take up first the question of whether the record warranted the submission of the question of Nelle Cullen's ownership of the Hudson car.

II. Section 321.493, Code 1950, I.C.A., provides as follows:

'In all cases where damage is done by any car by reason of negligence of the driver, and driven with the consent of the owner, the owner of the car shall be liable for such damage.'

While the word 'owner' is singular in the statute it may extend to the plural 'owners' so as to fasten liability on all of the owners of the automobile if there are two or more such owners of a single automobile, Section 4.1, Par. 3, Code 1950, I.C.A. Nelle Cullen argues plaintiff had the burden of proving her ownership of the car and the only evidence of her ownership is the registration in her name and such evidence of registration standing alone will not make out a prima facie case on the issue of her ownership of the car. Let us examine this contention without any reference to defendants' testimony. It is true as Nelle Cullen argued that plaintiff, in his case against her, had the burden of proving she was the owner. Would he make out a prima facie case by proving the car was registered in her name at the time of the accident? We hold he would and if there was no other testimony bearing on the issue of her ownership it would require the submission of the issue to the jury. Frew v. Barto, 345 Pa. 217, 26 A.2d 905; Conley v. Mervis, 324 Pa. 577, 188 A. 350, 108 A.L.R. 160; Tigue Sales Co. v. Reliance Motor Co., 207 Iowa 567, 221 N.W. 514; Farrelly v. Heuacker, 118 Fla. 340, 159 So. 24; Ford v. Hankins, 209 Ala. 202, 96 So. 349; Ferris v. Sterling, 214 N.Y. 249, 108 N.E. 406; Blashfield Cyclopedia of Automobile Law, Vol. 9, Part 2, Sec. 6272; Berry on Automobiles, Sixth Edition, Vol. 2, Sec. 1343.

In Farrelly v. Heuacker, 118 Fla. 340, 159 So. 24, 25, it is stated:

'It is settled law in this country that the title certificate and the person to whom the license is shown to be issued constituted presumptive ownership in the car, but such presumption may be met and overcome by evidence.'

In Berry on Automobiles, Sixth Edition, Vol. 2, Section 1343 the rule is stated:

'Evidence that the automobile which caused the plaintiff's injuries displayed a certain license number, and that this number was registered in the office of the secretary of state in the defendant's name as owner, makes out a prima facie case of ownership in the defendant.'

In Blashfield Cyclopedia of Automobile Law, Vol. 9, Part 2, Section 6272, it is stated the certificate of registration is 'documentary proof of ownership' the same as a liability insurance policy, chattel mortgage or bill of sale covering the car involved in the accident.

In Ferris v. Sterling, 214 N.Y. 249, 108 N.E. 406, 407, it is held:

'The license number of the car, coupled with evidence that the defendant held the license, was prima facie proof that the defendant was the owner.'

Statutes similar to ours, fastening liability on the owner of an automobile negligently driven by another are quite common. We have found no case where, in suits under such statutes, it was ever held proof of registration was insufficient to make out a prima facie case of ownership against the registrant. No case so holding is cited in appellant's brief. The case of Craddock v. Bickelhaupt, 227 Iowa 202, 288 N.W. 109, 113, 135 A.L.R. 474, is not authority for the proposition that proof of registration does not make out a prima facie case of ownership. In that opinion we said 'any inference of ownership arising from the fact that the car was registered in the name of defendant at the time of the accident was met and overcome by other evidence introduced by plaintiff which established' ownership in another. No one contends that proof of registration establishes ownership in the registrant. As stated in 61 C.J.S., Motor Vehicles, § 517, p. 278: 'Positive, unequivocal testimony that defendant was not the owner will rebut a contrary presumption arising from the evidence * * *.' The Craddock case cites the case of Abraham v. Hartford Fire Ins. Co., 215 Iowa 1, 244 N.W. 675, 676 and quotes a portion of an approved instruction in the latter opinion to the effect that 'the transfer of the certificate of registration (to the daughter) was merely prima facie evidence of ownership in the daughter'. The Craddock case recognizes the prima facie case is made out by proof of registration but holds it was overcome by other evidence.

We will discuss the proposition of whether the prima facie case is overcome by defendants' evidence in the next division. But the rule we understand is established by all of the authorities is that, under statutes where liability depends on ownership of a car, proof of registration makes out a prima facie case of ownership in the registrant. This seems a logical rule, and one that certainly conforms to a common public attitude toward the registration certificates as indicia of ownership. It certainly is not putting too great a burden on registrants to make them assume some defensive responsibilities if in fact they do not own the car.

The case of Tigue Sales Co. v. Reliance Motor Co., 207 Iowa 567, 221 N.W. 514, 516, is direct authority for holding that the issue of registrant's ownership was 'clearly for the jury to determine.' There we upheld the judgment against the registered owner although it was 'conclusively shown' the car was in the possession of another and the defendant testified it had sold and delivered the car to the possessor but had failed to change the registration.

III. Nelle Cullen filed a separate answer in which she denied ownership of the Hudson car. She did not testify in support of this denial. The only evidence we have is the testimony of her nephew Glenn that he owned the car. Is this sufficient to warrant a holding...

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