Berge v. Harris

• Citation: 170 N.W.2d 621
• Decision Date: 16 September 1969
• Docket Number: No. 53562,53562
• Parties: Jerrie BERGE, Appellant, v. Neil S. HARRIS, Gerald F. Knapp, and University Athletic Club of Iowa City, Iowa, Appellees.
• Court: United States State Supreme Court of Iowa

Page 621

170 N.W.2d 621

Jerrie BERGE, Appellant, v. Neil S. HARRIS, Gerald F. Knapp, and University Athletic Club of Iowa City, Iowa, Appellees.

No. 53562.

Supreme Court of Iowa.

Sept. 16, 1969.

Westfall, Laird, Burington, Bovard & Heiny, Mason City, for appellant.

Betty, Neuman, McMahon, Hellstrom & Bittner, Davenport, for appellees Neil S. Harris and Gerald F. Knapp.

Shulman, Phelan, Tucker, Boyle & Mullen, Iowa City, for appellee University Athletic Club.

STUART, Justice.

Plaintiff sustained personal injuries when the car in which she was riding as a guest struck the rear end of a parked vehicle. She brought this action against Harris, driver of the car in which she was riding, and his stepfather Knapp, its owner, alleging the driver's intoxication and recklessness. Action was brought against the University Athletic Club of Iowa City under the Dramshop Act, section 129.2, Code of Iowa. At the close of plaintiff's case, the trial court directed a verdict in favor of all defendants on the grounds that there was not sufficient evidence to submit the question of recklessness to the jury and the evidence established plaintiff had assumed the risk of the driver's intoxication as a matter of law.

Defendant, Harris and his friend Stuart Jacobson, were students at Drake. Both had formerly attended the University of Iowa. By prearrangement they came to Iowa City on February 18, 1966. Jacobson wanted to attend a fraternity party. Plaintiff had a date with Jacobson. Harris had a date with Patricia Grossman.

The boys arrived in Iowa City about 3:30 p.m. and drank some beer in the afternoon. They picked the girls up at Burge Hall about 8:30. They went first to the home of a friend named Carley. From there they were to the University Athletic Club where the fraternity party was being held. The accident occurred as they were returning to Burge Hall after the party.

As the primary questions involve the sufficiency of the evidence to generate jury questions, it will be stated in necessary detail under the appropriate assignment of error.

I. No claim is made there was not sufficient evidence of Harris' intoxication to generate a jury issue. The question is whether there was also evidence plaintiff was so advised of his condition that she, as a matter of law, assumed the risk of personal injury when she rode in the automobile he was driving.

The doctrine of assumption of risk is based on the voluntary acceptance of the danger by plaintiff with full knowledge thereof and involves a more or less deliberate choice. 'It cannot logically be held that one has deliberately chosen a dangerous course of which he is ignorant merely because he should have known of it.' Bohnsack v. Driftmier, 243 Iowa 383, 393, 52 N.W.2d 79, 84.

In order to affirm the trial court's ruling which sustained the motion to direct a verdict on this ground, the evidence viewed in the light most favorable to plaintiff must, as a matter of law, compel the finding plaintiff knew Harris had been drinking to the extent it was dangerous to ride with him when they left the University Athletic Club. We will examine the evidence tending to show plaintiff's awareness of Harris' condition, keeping in mind it is only in the exceptional case where a verdict can be directed in favor of the party having the burden of proof. Lamaak v. Brown, 259 Iowa 1324, 1327, 147 N.W.2d 915, 916; Sayre v. Andrews, 259 Iowa 930, 943, 146 N.W.2d 336, 344; Reeves v. Beekman, 256 Iowa 263, 270, 127 N.W.2d 95, 99.

Patricia Grossman told plaintiff the boys had been drinking beer in the afternoon. Plaintiff saw Harris with a beer in his hand at Carley's but didn't know how much he drank there. Plaintiff split one beer with her date at Carley's. There was nothing unusual about Harris' driving, appearance or actions before they arrived at the Athletic Club.

At the Athletic Club plaintiff and her date visited friends, danced and watched a skit performed by fraternity pledges. She drank one glass of beer. Jacobson did not drink much. Harris and his date spent most of the evening in the barroom which was separate from the dance floor and tables.

At no time while they were at the party did plaintiff visit with Harris. She was close to him on two occasions, but paid no particular attention to him. The four of them had their picture taken together right after they got there. At intermission, he introduced her and Jacobson to a member of the band. There was nothing at that time to indicate to plaintiff Harris had had too much to drink. She only saw Harris and his date dance one three minute dance. Except when he was dancing, he had a drink of scotch and water in his hand. She had no way of knowing how many drinks he had. She did not see him stagger or hear him slur his words at any time during the evening.

After the dance was over plaintiff and her date visited with friends, got their coats and as they passed the bar on the way to the car, Harris was there with a drink in his hand. After waiting in the car for five or ten minutes, plaintiff sent Jacobson back in to get Harris and his date. She stayed in the car and did not observe Harris as he walked to the car.

When Harris came to the car, the plaintiff, in the presence of Harris, Jacobson and Patsy Grossman, asked Jacobson if he would drive. Jacobson asked Harris if he could drive and Harris said that he was okay and it was his car and he would drive. Plaintiff then asked if Patsy or she could drive. They laughed and teased her about this suggestion.

She wanted someone else to drive because she was apprehensive about Harris driving. She was apprehensive because she knew he had been in the bar most of the evening and because Jacobson had to go back in and get him when they were having and she didn't know how much he had had to drink. She would just rather have had someone else drive. She questioned the amount Harris had had to drink.

She also testified: 'I was saying at first I was doubtful whether he could drive and I asked Stuart and Stuart said he was okay, and so I relied on Stuart's judgment because Stuart is a friend of mine and he was also my date.' They left the Athletic Club with Harris driving.

None of the witnesses who testified Harris was intoxicated stated he staggered or slurred his words. Two witnesses based their opinion on his 'unseemly embrace with a girl at the bar. They did not see him move or hear him talk.

One student testified he was 'definitely high' and talked louder than usual. Pasty testified there was nothing about his conduct that would alert a bartender that he was intoxicated. She did not believe he was intoxicated, but was 'high'. She defined intoxication as being unable to control the way you walked and your ability to pick up things--when you have lost motor control.

We cannot say this is one of the exceptional cases in which defendants have carried the burden of proving assumption of risk as a matter of law. It is true plaintiff's testimony is inconsistent and the jury might well have believed she knew of Harris' condition and appreciated the danger of riding with him. The jury might also have believed she did not know he was intoxicated and was at most apprehensive because she knew he had been doing some drinking. No one testified he displayed any of the usual symptoms of intoxication, except that he was louder and gayer than usual. There was no showing plaintiff saw him acting this way.

Evidence that defendant did not appear to be intoxicated was important in holding a jury question on assumption of risk was engendered in Lamaak v. Brown, 259 Iowa 1324, 1327, 147 N.W.2d 915, 916; Bohnsack v. Driftmier, 243 Iowa 383, 394, 52 N.W.2d 79, 85; Booth v. General Mills, Inc., 243 Iowa 206, 209, 49 N.W.2d 561, 562; Agans v. General Mills, Inc., 242 Iowa 978, 982, 48 N.W.2d 242, 244, and Augusta v. Jensen, 241 Iowa 697, 700, 42 N.W.2d 383, 385. In all five of these cases plaintiff had a greater opportunity to know how much defendant drank than plaintiff here. In the cited cases plaintiff was with defendant when he was drinking. Here the contacts during the evening were limited.

The record also shows plaintiff knew Harris only slightly. She had not been around him to know how he acted when he was drinking. Lack of familiarity was another factor affecting plaintiff's knowledge of Harris' condition. In Bohnsack v. Driftmier, supra, we considered the fact that the guest and the driver were comparative strangers to be significant.

In three cases we have held assumption of risk established as a matter of law. Christopherson v. Christensen, 258 Iowa 648, 656, 140 N.W.2d 146, 151; Reeves v. Beekman, 256 Iowa 263, 270, 127 N.W.2d 95, 99; Garrity v. Mangan, 232 Iowa 1188, 1193--1194, 6 N.W.2d 292, 295. In all of these cases the driver and guest associated together for several hours while both were drinking. The evidence here is not comparable. We believe a proper distinction can and should be made between situations in which the guest is an active participant in the drinking activities and must have known how much the host drank and the facts disclosed in the instant case.

We must recognize that a guest is not likely to refuse to ride with a host because he is merely apprehensive that the host may have too much to drink. Such apprehension does not show full knowledge of the danger so as to constitute assumption of risk as a matter of law. The evidence here does not show plaintiff was so closely associated with Harris' drinking activities that she must have known how much he drank. The evidence would support a finding Harris did not present an obviously intoxicated appearance. The question of assumption of risk was for the jury.

II. Plaintiff contends assumption of risk is not available to the Athletic Club as an affirmative defense under section 129.2, which provides: 'Every * * * other person who shall be injured in person * * * in consequence of the intoxication, * * * of any person, shall have a...