Abel v. Dodge

• Court: Iowa Supreme Court
• Writing for the Court: GARFIELD; All Justices concur, except LeGRAND
• Citation: Abel v. Dodge, 261 Iowa 1, 152 N.W.2d 823 (Iowa 1967)
• Decision Date: 19 September 1967
• Docket Number: No. 52035,52035
• Parties: Clara C. ABEL, Administrator of the Estate of Raymond Arthur Abel, Deceased, Appellee, Cross-Appellant, v. Ronald D. DODGE and Dodge Masonry Construction Company, Defendants, Dodge Masonry Construction Company, Appellant, Cross-Appellee. Leland E. KOLLER, Appellee, Cross-Appellant, v. Ronald D. DODGE and Dodge Masonry Construction Company, Defendants, Dodge Masonry Construction Company, Appellant, Cross-Appellee.

Page 823

152 N.W.2d 823

261 Iowa 1

Clara C. ABEL, Administrator of the Estate of Raymond Arthur Abel, Deceased, Appellee, Cross-Appellant, v. Ronald D. DODGE and Dodge Masonry Construction Company, Defendants, Dodge Masonry Construction Company, Appellant, Cross-Appellee.

Leland E. KOLLER, Appellee, Cross-Appellant, v. Ronald D. DODGE and Dodge Masonry Construction Company, Defendants, Dodge Masonry Construction Company, Appellant, Cross-Appellee.

No. 52035.

Supreme Court of Iowa.

Sept. 19, 1967.

R. N. Johnson, Fort Madison, and James W. Crawford and Gene V. Kellenberger, Cedar Rapids, for appellant, Dodge Masonry Const. Co.

Wm. H. Napier, Fort Madison, for appellees, cross-appellants.

James A. Lorentzen, Des Moines, for defendant Ronald D. Dodge.

GARFIELD, Chief Justice.

These two law actions against Dodge Masonry Construction Company, owner of a pickup truck, and Ronald D. Dodge, driver, asked damages resulting from a collision between the truck and an automobile owned and driven by plaintiff Koller in which plaintiff Abel's decedent, Raymond Arthur Abel, was a passenger. The cases were consolidated for trial, resulting in a jury verdict and judgment for each plaintiff against both defendants. Defendant Masonry Company appeals.

The principal point urged upon us is that the inference or presumption Ronald was driving the pickup with the owner's consent was conclusively rebutted and the trial court should have so ruled as a matter of law.

The evidence is that Floyd R. Dodge, president and, with his wife, sole owner of the Masonry Company, gave his consent to his twin brother Lloyd to drive the pickup, loaded with cement blocks, to a cabin about 50 miles south of Burlington where Lloyd was to build a wall as an accommodation to a friend. After obtaining such consent Lloyd, without Floyd's knowledge, asked his son Ronald if he wanted to go with him for company. Near the start of the trip Lloyd permitted the son to drive.

When the truck reached U.S. Highway 218, on which it was to be turned from west to south, Ronald failed to stop for the stop sign facing him and drove into the path of the Koller car, proceeding north on 218. There is ample evidence the collision was caused by Ronald's negligence.

I. The trial court instructed the jury (instruction 19) that where as here ownership of the vehicle is admitted, a rebuttable inference is created that it was being driven with consent of the owner; the inference does not change the burden of proof on the issue of consent which remains with plaintiffs. Also, there is an implication that if the person permitted by the owner to use the vehicle is present at the time in the vehicle, and is still the director of the enterprise, the operation of the vehicle is still his operation although the hands on the wheel are those of a substitute and the negligence, if any, in driving will bind the owner. The instruction then proceeds to apply this abstract rule to this particular case.

The Masonry Company's first assigned error is that the inference Ronald was driving with its consent was conclusively rebutted. Its second assignment is that it was error to include in the instruction the last two sentences in the preceding paragraph.

We think this second assignment presents the vital question for our decision. We may assume, without so deciding, that if it were not for the rule stated in the second sentence of the instruction, supra, and its application to this case in the final sentence, the Masonry Company would have been entitled to a directed verdict on the issue of consent and to a reversal here.

The language of the instruction to which objection is made was obviously taken from language Tuttle v. Longnecker, 258 Iowa 393, 138 N.W.2d 851, 855, quotes with approval from 8 Am.Jur.2d, Automobiles and Highway Traffic, section 610, page 161. What is there quoted from the cited text is preceded by this:

' § 610.--Third person operating vehicle with permittee's consent. Under statutes making the owner of a motor vehicle liable for injuries resulting from its negligent operation while it is being used or operated by another with his permission, it has been held that the owner is liable for the negligent acts of a third person operating the vehicle with the permittee's consent, where the permittee accompanies such driver. The owner is not relieved from liability under such circumstances even though he did not know that a third person was driving his vehicle and did not consent thereto, and even though he had instructed his permittee not to allow another to drive.'

The evidence is that the permittee (Lloyd) was accompanying his driver son; as stated, the owner, for whom Floyd acted in granting permission to his brother, did not know the son was driving and, of course, did not consent thereto. Indeed Lloyd did not know his son would accompany him when he obtained Floyd's permission to take the pickup.

There is no evidence Floyd instructed Lloyd not to allow another to drive the pickup. Floyd did instruct his brother to put 'gas' in it--no other condition was imposed at the time consent was given. Thus we have no occasions to consider, and expressly refrain from doing so, whether the rule referred to in the instruction here would apply where the owner instructs his permittee not to allow another to drive.

The language Tuttle v. Longnecker, supra, approves adds this to what the court told the jury here: 'These rules apply in particular where the permittee granting consent to a third person to drive is a member of the owner's family.' In Tuttle the owner granted permission to drive to his daughter, a member of his family, who in turn entrusted the driving to a young man in the car. Here Lloyd was not a member of the family of his twin brother. However, the rule our Tuttle opinion approves is not limited to situations where the permittee is a member of the owner's family although particularly applicable thereto.

We have carefully considered whether the jury could properly find Lloyd was 'still the director of the enterprise' after turning the steering wheel over to his son. We think it could so find although a contrary finding on this point would also have evidential support. Lloyd remained in the same seat with his son, warned him a loaded truck could not be stopped as quickly as an empty one 'and we tried it at two or three other stop signs', when they approached the intersection where the crash occurred Lloyd called Ronald's attention to the fact the sign said the town of Donnellson (toward which they evidently intended to go) was to the left and Ronald replied 'Yes, I see it.'

Unless we are to repudiate what we so recently approved in Tuttle v. Longnecker, supra, we must hold the language of instruction 19 of which the Masonry Company complains was proper and the second assigned error should be overruled. We are not persuaded we should thus reverse ourselves.

II. We are not content to rest our decision on what is said in the preceding division.

The pertinent part of our consent statute (section 321.493 Codes 1962, 1966) provides: 'In all cases where damages is done by any motor vehicle by reason of negligence of the driver, and driven with the consent of the owner, the owner of the motor vehicle shall be liable for such damage.'

In addition to Tuttle v. Longnecker, supra, Iowa Mutual Ins. Co. v. Combes, 257 Iowa 135, 131 N.W.2d 751, and McKirchy v. Ness, 256 Iowa 744, 128 N.W.2d 910, deal at some length with the question of liability under this statute. Both quote from Bridges v. Welzien, 231 Iowa 6, 300 N.W. 659, which reviews our decisions up to then involving the consent statute.

An annotation to Souza v. Corti, 22 Cal.2d 454, 464, 139 P.2d 645, 147 A.L.R. 861, at 875--876, states the purpose of such statutes as ours 'is the protection of the public. In harmony with that purpose it would seem that an owner of a motor vehicle should be held liable for injuries or damages which occur while his car is being driven by a third person allowed by owner's permittee to drive or use the car, since the power to prevent injury to the public by the negligent use of his car is vested in the owner. The cases on the question are not, however, altogether in harmony.'

An annotation to Kresbach v. Miller, 22 Wis.2d 171, 125 N.W.2d 408, 4 A.L.R.3d 1, at 10--133, deals at length with this question, closely related to ours: 'Omnibus clause of automobile liability policy as covering accidents caused by third person who is using car with consent of permittee of named insured.' What is commonly called the 'omnibus clause' usually found in automobile liability policies extends protection of the policy to one using the insured vehicle provided such use is with the consent or permission of the named insured. The analogy between such a provision and consent statutes like ours is clear.

The last cited annotation states at page 19: 'Where the use to which the automobile was being put was within the scope of the initial permission and the original permittee was a passenger, or the operation of the car by the second permittee was for the original permittee's benefit or advantage, the courts have usually held the second permittee to be within the coverage of the omnibus clause on the ground that the named insured's unrestricted permission to another to use the vehicle includes the permittee's use of it for permitted purposes through its operation by a third person, or on the ground that the policy requires only permission to the 'use' of the car, rather than to the identity of the driver.'

To the foregoing the annotation adds that a few courts have held to the contrary. Substantially the same statement quoted above appears elsewhere in the annotation. (See, e.g., page 58)

An earlier annotation in 160 A.L.R. 1195, at 1213 says: 'It has been held in the great majority of cases that he initial permission given by the named assured to the original permittee includes, by implication,...