Bessman v. Harding

• Decision Date: 07 April 1970
• Docket Number: No. 53833,53833
• Parties: Gladys M. BESSMAN, As Administrator of the Estate of Leonard O. Bessman, Deceased, Appellee, v. Dennis HARDING, Appellant.
• Court: Iowa Supreme Court

Page 129

176 N.W.2d 129

Gladys M. BESSMAN, As Administrator of the Estate of Leonard O. Bessman, Deceased, Appellee, v. Dennis HARDING, Appellant.

No. 53833.

Supreme Court of Iowa.

April 7, 1970.

Jim R. Sween and Lundy, Bultler, Wilson & Hall, Eldora, for appellant.

Hobson, Cady & Drew, Hampton, for appellee.

MASON, Justice.

This is a law action brought under the guest statute, section 321.494, Code, 1966, by Gladys M. Bessman, administrator of her husband's estate in which she seeks to recover for the death of her decedent, Leonard, alleging it was caused by the intoxication of defendant Dennis M. Harding, owner and operator of the automobile in which her decedent was a guest. Defendant alleged in defense Mr. Bessman assumed the risk of defendant's intoxicated condition when he became a guest.

The trial court overruled defendant's motion for directed verdict made at the close of plaintiff's evidence and renewed at the close of all the evidence. The case was submitted to the jury on the issues of defendant's intoxication being a proximate cause of the accident, Harding's defense decedent had assumed the risk as a bar to plaintiff's right of recovery and amount of damages sustained.

After overruling defendant's motion for judgment notwithstanding the verdict and in the alternative for a new trial, judgment was entered against defendant on the $10,000 verdict in favor of plaintiff.

Defendant has appealed asserting the trial court erred in failing to rule that plaintiff's decedent assumed the risk of defendant's intoxication as a matter of law. In the alternative defendant urges as a basis for new trial that the court erred in (1) admitting opinion testimony of patrolman McMurray as to the effect of alcoholic beverages on driving ability over defendant's objection, (2) permitting the jury to award damages for loss of services and support from decedent to his family, (3) permitting the jury to award damages for loss of accumulations to decedent's estate and (4) failing to rule the verdict was excessive.

I. The accident from which this action arose occurred around midnight, either in the late evening of February 4 or early morning of February 5, 1967, at a T-intersection three miles west and one mile south of Ackley in Hardin County, when defendant's automobile left the road and went into a ditch. Leonard O. Bessman was killed.

Defendant asserted in motion for judgment notwithstanding the verdict he was entitled to a directed verdict made at the close of all evidence, had moved therefor and the jury did not return such a verdict. In order to sustain defendant's contention urged in motion for directed verdict the evidence viewed in the light most favorable to plaintiff must, as a matter of law, compel the finding decedent knew Harding had been drinking to the extent it was dangerous to ride with him when they left on the ill-fated trip.

Stated otherwise defendant's contention presents the question whether there was evidence plaintiff's decedent was so advised of Harding's intoxicated condition that, as a matter of law, he assumed the risk of personal injury when he rode in the automobile Harding was driving.

Assumption of risk is an affirmative defense, the burden being upon defendant to establish it. Lamaak v. Brown, 259 Iowa 1324, 1327, 147 N.W.2d 915, 916, and citations.

Only in an exceptional case will an affirmative issue, as a matter of law, be decided in favor of the one who has the burden. Reeves v. Beekman, 256 Iowa 263, 270, 127 N.W.2d 95, 99; Berge v. Harris, Iowa, 170 N.W.2d 621, 623.

Dennis Harding stopped at a tavern when he got off work Saturday afternoon February 4, bought a six-pack of beer, drank one beer and went to his home in Ackley. There he opened another can of beer, drank about half of it before eating supper. As he was finishing supper his father-in-law, Leonard O. Bessman, arrived from Dumont. Harding offered his father-in-law a beer which he drank as Dennis finished the other half of the beer he had opened earlier. Both men then engaged in conversation until Dennis' parents arrived about 7:30 p.m. Shortly thereafter, Dennis, his father, and Mr. Bessman retired to the kitchen. Mr. Bessman gave Dennis $10, asked him to go to the liquor store and buy two pints of whiskey. Harding did so and returned home where he, his father and his father-in-law sat in the kitchen, talked and drank the liquor Mr. Bessman had paid for. During the next two and one-half hours Harding had three mixed drinks, each a shot and one-half to two shots of whiskey with a mix. Harding testified his father and father-in-law had as much and possibly more. Altogether the three men consumed one and two-thirds pints of the whiskey.

By 10:30 that evening when Mr. Bessman decided to leave the Harding home, he was obviously intoxicated. Bessman's daughter and son-in-law asked decedent to stay at their home for the evening, telling him that he could go home in the morning. However, he insisted he was going to Alden to see his nephew, then home to Dumont. Harding asked his father-in-law if he would let him drive as he and his wife agreed her father was in no shape to drive but Dennis was. Bessman agreed to let Dennis do the driving.

Defendant recalled that as he entered the automobile he tried to talk his father-in-law out of first going to Alden but Bessman still insisted. Not wanting to argue with him, defendant left on back roads toward Alden. Soon Mr. Bessman began napping and each time he did, defendant cut toward Dumont in a zig-zag pattern hopping it would not be noticed before they reached Dumont. As Harding was driving east on a gravel road between 40 and 50 miles an hour they crested a hill approaching a T-intersection, his father-in-law looked out the window, realized they were not going to Alden, stomped his foot across the hump in the floorboard and accelerated the car. By the time defendant was able to remove Mr. Bessman's foot from the accelerator, the vehicle had been accelerated to 65 m.p.h. and was within three car lengths of the intersection. Defendant attempted to break and turn the vehicle, but to no avail. Defendant's car came to rest in the east ditch of the northsouth intersecting road. The next remembrance defendant had was waking up in a hospital bed in Waterloo at 9:00 Sunday morning. Dennis had had nothing to drink from the time he left home until the time of the accident.

Highway patrolman Larry James McMurray testified he received a call concerning the accident around 12:30 a.m. February 5. Both at a point one mile from the accident scene and later at the Ackley medical center he observed Mr. Harding at close range. Defendant had an odor of alcohol on his person and breath. Though not difficult to understand, he was slurring his speech and dragging out his words. From these observations it was patrolman McMurray's opinion defendant had had too much to drink to be driving an automobile.

At patrolman McMurray's request a sample of defendant's blood was taken about 1:30 a.m. the night of the accident. Lab tests revealed 190 milligrams of alcohol per 100 cc's of blood--1.9 percent alcohol content. As a result of this finding defendant pleaded guilty to an OMVI charge.

Harding had been married six years and had known his father-in-law seven years, during which time he had drunk with him four times at the very most. They had been together numerous other times.

A blood specimen was taken from the decedent which revealed an alcoholic content of 260 milligrams per 100 cc's of blood.

The foregoing constitutes the evidence bearing on defendant's intoxication as it relates to the assumption of risk issue.

II. Defendant argues it affirmatively shows he was at all material times obviously intoxicated and such condition must have been apparent.

An examination of our case law reveals six relatively recent cases involving situations where plaintiff, a guest in defendant's vehicle, engaged in social drinking with defendant prior to the accident. In that respect they are similar to the factual situation presented here. In three of these cases this court said plaintiff assumed the risk of defendant's intoxication as a matter of law. Garrity v. Mangan, 232 Iowa 1188, 6 N.W.2d 292; Reeves v. Beekman, supra; Christopherson v. Christensen, 258 Iowa 648, 140 N.W.2d 146. The others determined the applicability of assumption of risk as a defense was a question for the trier of fact. Augusta v. Jensen, 241 Iowa 697, 42 N.W.2d 383; Bohnsack v. Driftmier, 243 Iowa 383, 52 N.W.2d 79; and Lamaak v. Brown, supra.

The key factor in those cases where we refused to find plaintiff assumed the risk as a matter of law was the presence of opinion testimony of several witnesses who observed defendant immediately prior to the accident. In each instance they testified it was their opinion defendant did not appear intoxicated. See Augusta v. Jensen, 241 Iowa at 700, 42 N.W.2d at 385; Bohnsack v. Driftmier, 243 Iowa at 394, 52 N.W.2d at 85; and Lamaak v. Brown, 259 Iowa at 1327, 147 N.W.2d at 916, all supra.

A somewhat general statement to the same effect was made in Berge v. Harris, supra, 170 N.W.2d at 624.

Those cases where we found plaintiff assumed the risk as a matter of law were absent such testimony. In Garrity v. Mangan, supra, 232 Iowa at 1190, 6 N.W.2d at 293, there was opinion testimony by those who observed defendant prior to the accident that he was talking loudly and under the influence of intoxicating liquor. In Reeves v. Beekman and Christopherson v. Christensen, both supra, there was either a total lack of opinion testimony concerning defendant's appearance prior to the accident or very little evidence on the subject. In Reeves no one testified concerning the appearance of defendant prior to the accident. See 256 Iowa at 269--270, 127 N.W.2d at 99. In Christopherson one witness observed the defendant prior to the accident and stated he did not appear intoxicated. See 258 Iowa at...