Augusta v. Jensen, 47608

• Decision Date: 02 May 1950
• Docket Number: No. 47608,47608
• Parties: AUGUSTA v. JENSEN et al.
• Court: Iowa Supreme Court

Page 383

42 N.W.2d 383

241 Iowa 697

AUGUSTA v. JENSEN et al.

No. 47608.

Supreme Court of Iowa.

May 2, 1950.

Ross, Johnson, Northrop & Stuart, Emmet Tinley II, of Council Bluffs, for appellants.

Roy W. Smith, of Council Bluffs, J. J. Higgins, of Omaha, Nebraska, for appellee.

MULRONEY, Justice.

On the evening of April 3, 1947, Leonard and Mike Jensen and Howard Swenson met in the Trapeze bar in Omaha. The young men, all in their early twenties, had dates with three girls of about their own ages. Leonard had a date with Betty Ann Augusta, Mike had a date with Betty Ann's sister Camille, and Howard had a date with Mary Peck. The young men had one whiskey high-ball apiece in the Trapeze bar and they then bought a pint of whiskey and left in a car for the girls' apartment. The car was owned by Martin Jensen, the father of Leonard and Mike, and driven by Leonard. Upon arrival at the girls' apartment something was said about going to the Seventeen Club in Council Bluffs. They went to this club where they danced until about twelve o'clock and where they all, with the exception of Camille, had a couple of drinks apiece. After leaving the club they drove around Council Bluffs, with Leonard driving and Betty Ann sitting next to him in the front seat and the other two couples in the back seat. About 12:30 Leonard, in attempting to make a left turn at an intersection, crashed into a light pole and Betty Ann was injured when her head struck the windshield.

In one count of Betty Ann's suit against Leonard and Martin Jensen for damages for injuries she sustained, she alleged that Leonard was operating the automobile while under the influence of intoxicating liquor. The answer denied the intoxication and pleaded that in any event plaintiff had full knowledge of the competency of Leonard to drive and she accepted and assumed all risk incident to his operation of the car. The case was tried to the court who found Leonard was, at the time of the accident, under the influence of intoxicating liquor; that the damages suffered by plaintiff were caused as a result of the driver, Leonard, being under the influence of intoxicating liquor; and 'that the plaintiff guest, not knowing that the defendant, Leonard Jensen, was under the influence of intoxicating liquor, did not assume the risk.' The trial court rendered judgment for plaintiff in the sum of $4,000 and defendants appeal, challenging the trial court's findings on the ground that: (1) the evidence fails to establish intoxication, (2) the evidence establishes assumption of risk as a matter of law, (3) the evidence fails to establish any intoxication of Leonard was the proximate cause of plaintiff's injuries.

I. This is law action tried to the court so the trial court's findings are each equivalent to a special verdict of a jury. Miller v. King, Iowa, 39 N.W.2d 307. Our only duty is to review the record to see if the trial court's findings are supported by substantial evidence.

II. The trial court found Leonard was operating the car at the time of the accident while under the influence of intoxicating liquor. Leonard admits he had one drink in the Trapeze bar early in the evening and two drinks as Club Seventeen. Leonard and his brother say the drinks in Club Seventeen were poured from the pint bottle of whiskey into seven-up set-ups. Immediately after the accident Leonard told his brother to get rid of the whiskey bottle which was then in the glove compartment of the car and Mike took this bottle, which he says was about two-thirds full, from the car and threw it away. Leonard was arrested after the accident and he spent the night in jail. The next morning he pleaded guilty in the district court to the crime of operating a motor vehicle while intoxicated. A doctor testified as to the result of a blood test which he made of Leonard's blood about an hour and a half after the accident. The doctor testified the blood test showed 165 milligrams of alcohol per 100 cc's of blood and that the presence of 150 milligrams of alcohol in 100 cc's of blood would in his opinion show intoxication. The doctor said he had run over 200 blood tests upon individuals, to determine alcoholic content. This evidence is substantial support for the trial court's finding that Leonard was operating the car while under the influence of intoxicating liquor.

III. The trial court found the plaintiff did not know Leonard was under the influence of liquor while he was driving and did not assume the risk of his driving while in that condition. Plaintiff testified that Leonard did not appear to her to be intoxicated. Her sister Camille flatly said that in her opinion Leonard was sober. In fact all of the occupants of the car who testified said there was nothing about Leonard's actions which would lead one to believe he was under the influence of intoxicating liquor. There was evidence that both Betty Ann and Camille asked Leonard, shortly before the accident, to drive slower and they said Mike asked him to drive slower but Mike did not remember making such a request.

One who becomes a guest in an automobile, knowing and appreciating that the driver is intoxicated, acquiesces in the operation of the car and will be held to be assuming the risk of the resulting accident. White v. McVicker, 216 Iowa 90, 246 N.W. 385; Wittrock v. Newcom, 224 Iowa 925, ...