Agans v. General Mills

• Decision Date: 05 June 1951
• Docket Number: No. 47878,47878
• Parties: AGANS v. GENERAL MILLS, Inc. et al.
• Court: Iowa Supreme Court

Page 242

48 N.W.2d 242

242 Iowa 978

AGANS v. GENERAL MILLS, Inc. et al.

No. 47878.

Supreme Court of Iowa.

June 5, 1951.

Rehearing Denied Sept. 21, 1951.

Hallagan & Lucier, Des Moines, and Charles D. Van Werden, Winterset, for appellants.

Killmar & Reynoldson, Osceola, and Daniel J. Gallery, Winterset, for appellee.

SMITH, Justice.

Plaintiff was injured while riding in a car belonging to defendant General Mills, Inc., a Delaware corporation and being driven by defendant Shocklee. The corporation's business was the manufacture and sale of grain products and feeds. Shocklee was a promotion man and sales representative of the company. Plaintiff was owner of a general feed store at Murray, Iowa, and had a contract with defendant company (negotiated by Shocklee) for sale and distribution of its products in an area which included the scene of plaintiff's injury.

On February 12, 1948, plaintiff and Shocklee were on a trip (contemplated by the contract) over a part of the territory. Somewhere between Murray and Lorimor they were joined by Don Henrichs, a customer, and drove on into Lorimor about noon.

After lunch and some time spent in a tavern they proceeded north on highway 169 toward Winterset. Henrichs and a man named Roy Adams were with them. Henrichs sat behind Shocklee, the driver, and plaintiff on the right rear seat behind Adams.

Just south of Winterset they collided with or sidewiped a car that was coming from the north and then struck a pickup truck and turned over, killing Adams and severely injuring plaintiff. The present action resulted. There was a verdict and judgment for plaintiff from which defendants appeal.

I. Plaintiff, as appellee, has moved for a dismissal or affirmance on the ground of defendant's alleged failure, in brief and argument, to specify assignments of error in compliance with our Rule 344, R.C.P., 58 I.C.A. It is unnecessary here to determine at just what point we might feel justified in resorting to such an extreme measure as dismissal of an appeal on this ground. Ordinarily the offender is most apt to be the sufferer if he fails to present his case in accordance with the rules which are designed to enable him to do so in the most effective manner.

We deem it our duty to dispose of appeals on their merits whenever it can be done, as it can here, without injustice to the complaining party; and the motion is accordingly denied.

II. Defendants' first and perhaps most strenuous contention is that plaintiff was guilty of contributory negligence as a matter of law. It seems to be based on the proposition that plaintiff knew when they left Lorimor, or that he as a reasonably prudent person should have known, that Shocklee was intoxicated; and that by voluntarily becoming a passenger in the car driven by Shocklee plaintiff was guilty of contributory negligence.

Guest statute cases are relied on in which it has been held so-called 'assumption of risk' may be pleaded as an affirmative defense. They are not directly in point here. See White v. McVicker, 216 Iowa 90, 246 N.W. 385; White v. Zell, 224 Iowa 359, 276 N.W. 76; Garrity v. Mangan, 232 Iowa 1188, 6 N.W.2d 292; Hansen v. Nelson, 240 Iowa 1298, 39 N.W.2d 292; Augusta v. Jensen, Iowa, 42 N.W.2d 383.

However, we have held in effect that in a proper case, based on negligence, facts that would in a guest case be competent as evidence of assumption or 'acceptance of risk, may constitute evidence of contributory negligence. Miller v. Mathis, 233 Iowa 221, 8 N.W.2d 744; Hansen v. Nelson, supra.

But of course in such a case the issue cannot be resolved as a matter of law if the evidence is in dispute as to whether plaintiff assumed the risk knowingly; or as to whether, after it became known to him, he acquiesced in it and failed to take such steps for his own safety as would be taken by a reasonably prudent person under like circumstances.

We find such dispute here. Defendants argue that because 'the accident occurred within a very few minutes after the party left the tavern, Shocklee must have been intoxicated * * * and his condition must have been known to the plaintiff for the reason that they had spent the greater part of the afternoon together * * * where alcoholic beverages were dispensed.'

This purported summary puts the strongest emphasis possible on Shocklee's own testimony. It ignores the rule that we are required to view the evidence in the light most favorable to the party against whom the motion is directed. According to Shocklee they arrived in Lorimor about noon and repaired to Walt's Tavern and 'had one bottle of beer' standing at the bar to drink it. They then spent an hour and a half at lunch and another 'half hour or so' visiting Henrich's brother at his filling station.

They returned to the tavern, 'ordered three pint size bottles of beer' and before starting to Winterset 'had two additional bottles of beer.' He added: 'I didn't drink any other beer at any place nor any intoxicating liquors * * *.' He also said: 'During the afternoon, we went out of Walt's at least twice while we were there.'

Plaintiff testified: 'While I was waiting for Henrichs and Shocklee to go, I talked with some men about their livestock and feeding problems. I don't know whether they remained in the tavern all that time or not.' He said he drank no beer after lunch and did not know whether the others 'remained in the tavern all that time or not.'

Henrich's testimony is vague: 'I drank a third bottle of beer. * * * I don't know whether Agans was sitting there or not, but I got up and walked around. * * * I saw Shocklee drink a couple of beers. I only saw Agans drink one.'

Furthermore the Record here is replete with uncontradicted testimony as to Shocklee's normal appearance when they left Lorimor. Plaintiff testified: 'As we got into the car and started to drive away from Lorimor, I didn't notice anything unusual about Shocklee or his driving at that time.'

Defendant Shocklee said that when they started for Winterset: 'I didn't show any effects of being intoxicated at that time. To my knowledge, I didn't stagger, was able to carry on a normal and competent conversation with those about me. I didn't feel as though I were intoxicated * * *. In my opinion when I came out of the tavern to get into my car, I wasn't intoxicated. There wasn't anything about me, my actions, appearance or demeanor that would give any appearance of my being intoxicated.'

Henrichs as a witness for defendant testified: 'When we came out of the tavern, I didn't see anything that would indicate to me that Shocklee was intoxicated. I didn't see anything unusual about his actions.'

In the face of this testimony it would be quite impossible to hold plaintiff failed to present a jury question on the issue of his own freedom from contributory negligence. He testified: 'When we first left Lorimor for the first three or four miles he (Shocklee) traveled a very normal speed. I would say about forty or fifty miles an hour. After he turned on the radio, we began to pick up speed.'

At one point, a little later, according to his testimony, when the speedometer had mounted to over 70 miles an hour on a winding road he yelled at Shocklee 'to slow it down, I would like to get there in one piece' and Shocklee replied 'Don't get excited Bob.'

The details of the accident are unessential. We have no doubt there was a case for the jury on this issue of contributory negligence.

III. A serious question urged by the appeal is the complaint of the conduct of plaintiff's attorney in closing argument to the jury when he is alleged to have said 'that defendant, Shocklee, will never pay one cent of any amount you find that he should pay, and * * * if he is forced to pay one cent of any amount, I will personally reimburse him for it.'

None of the jury arguments for either party was reported and no objection was urged by defendants when the alleged language was used. The case went to the jury and verdict for plaintiff was returned and judgment thereon entered May 19, 1950. Defendants were granted additional time to file 'any motions or applications provided for under R.C.P. 243 and 244.' On June 20, 1950, they filed a request that the court sign their 'Bill of Exceptions' in which the alleged misconduct was for the first time brought to the attention of the trial judge. There was attached to the proposed 'Bill of Exceptions' affidavits of two of defendants' attorneys.

There was also a 'Division II' denominated 'Motion to set aside verdict and judgment and for a new trial.'

Plaintiff filed resistance contending there was no record of the alleged misconduct, that the affidavits were not competent evidence of any such misconduct and...