Bohnsack v. Driftmier

• Decision Date: 04 March 1952
• Docket Number: No. 48026,48026
• Parties: BOHNSACK v. DRIFTMIER.
• Court: Iowa Supreme Court

Page 79

52 N.W.2d 79

243 Iowa 383

BOHNSACK v. DRIFTMIER.

No. 48026.

Supreme Court of Iowa.

March 4, 1952.

James E. Coonley, of Hampton, and Senneff & Bliss, of Mason City, for appellant.

Leming & Hobson, of Hampton, and Westfall, Laird & Burington, of Mason City, for appellee.

GARFIELD, Justice.

On February 28, 1950, about 8 p.m. Walter Bohnsack, 21, was riding as a guest of defendant Driftmier in his automobile. While defendant was driving south on paved U. S. Highway 65 his car collided with a truck going north. Bohnsack was killed. His mother, as his administratrix, brought this law action under the guest statute, section 321.494, Code 1950, I.C.A. to recover for his death, alleging it was caused by defendant's reckless operation of his automobile.

At the close of plaintiff's evidence defendant moved for a directed verdict because of claimed insufficient evidence of reckless operation. After the court indicated he felt the motion was good plaintiff amended her petition to conform to the proof by alleging defendant was under the influence of intoxicating liquor and the collision and death were caused thereby. Defendant admitted these new allegations and averred decedent knew or should have known defendant was intoxicated and therefore assumed the risk of riding with defendant.

The court instructed the jury it was admitted defendant was intoxicated at the time of the collision and such intoxication was the proximate cause thereof and plaintiff was entitled to recover if she proved she was damaged by her son's death, unless defendant proved his affirmative defense of assumption of risk. There was a verdict and judgment for defendant from which plaintiff appealed.

I. Plaintiff asserts error in the court's not submitting to the jury to issue of reckless operation of defendant's automobile, first pleaded by her. This requires mention of the evidence.

Plaintiff met defendant and two Fielding brothers in a tavern at Hampton between 5 and 6 p. m. the day of the collision. Defendant testifies he had a glass of beer there. The Fielding brothers had taken a drink of whiskey about 3 p. m. About 6:30 the four left the tavern in defendant's car. Defendant then bought two pints of whiskey and Clarence Fielding one pint. Thus equipped the four started for Sheffield. Clarence says each had a drink of whiskey on the road. According to defendant each took two drinks. When they reached Sheffield they went to a tavern and got four bottles of 7-Up which they 'spiked' and drank. They may have had more than one round of drinks there. Clarence Fielding drank one or two bottles of beer.

After perhaps an hour at this tavern the four started the return trip to Hampton. Clarence purchased six cans of beer to take with them. Bohnsack's sister was in the tavern at Sheffield and asked him to return to Hampton with her rather than with his male companions but he refused. About seven miles south of Sheffield, as might have been expected, a collision occurred.

Boyd was driving his cattle truck north. He first saw defendant's car when about a half mile away. It was on its right (west) half of the highway until it was within 200 to 300 feet of the truck when it came across onto the east half and east shoulder. It was then probably 75 feet from the truck which slowed down and blinked its lights several times. In an effort to avoid a collision the truck turned to its left (west) a little over the center line, defendant's car quickly veered to its right (also west) toward the center and the right side of the two vehicles collided on the east half of the pavement.

Defendant and the Fielding brothers received head and other injuries in the collision. Defendant testifies he remembers nothing that happened after he was seated in the tavern at Sheffield. Clarence says he recalls nothing that occurred after leaving there. Harry Fielding testifies he remembers nothing that happened in the tavern at Hampton or later. Clarence says, 'I guess Harry was pretty tight.'

There is ample evidence defendant was under the influence of liquor when the party left Sheffield. Defendant was convicted of drunken driving. Three unopened beer cans were in the car after the collision. Two empty ones and another partly empty were found near the wreck. A pint bottle of whiskey three-fourths full was found in defendant's pocket. (As stated, he bought two pints just before they left Hampton.)

The above is a sufficient indication of the evidence for the present. We are not inclined to hold it was error not to submit the issue of reckless operation of defendant's car as an added ground of recovery. In a sense it is doubtless reckless for one to drive a car when he is under the influence of liquor. We have never held, however, that doing so in itself amounts to reckless operation under the guest statute. And in Martin v. Momyer, 230 Iowa 1158, 1165, 300 N.W. 310, 314, we say the issue of reckless operation should not have been submitted to the jury although there was substantial evidence the driver was under the influence of liquor, drove his car onto the wrong lane of the pavement and collided with an oncoming car. See also Davis v. Hollowell, 326 Mich, 673, 40 N.W.2d 641, 643, 15 A.L.R.2d 1160, 1164.

So far as shown, defendant's car was being driven properly on its right side of the highway until it was within 200 to 300 feet of the truck. Then without explanation, other than defendant's intoxication, the car left its proper place on the highway and got into the path of the truck. A finding of recklessness would necessarily rest largely, if not wholly on this movement of the car just before the collision.

On the issue of recklessness the case is much like Nehring v. Smith, Iowa, 49 N.W.2d 831. While there was no evidence in the cited case liquor was used or the lights of the oncoming car were 'blinked,' there defendant's car traveled 50 to 55 miles an hour without reducing speed--here there is no evidence of defendant's speed. Here, too, defendant made a belated effort to avoid the collision by turning to his right--nothing of the kind appeared in Nehring v. Smith.

Vandell v. Roewe, 232 Iowa 896, 6 N.W.2d 295, and Martin v. Momyer, supra, 230 Iowa 1158, 1165, 300 N.W. 310, 314, also involve somewhat similar facts.

Of the 12 precedents plaintiff cites on this branch of the case four hold a jury question on the issue of recklessness was not presented. We think the showing of recklessness in the others, including Allbaugh v. Ashby, 226 Iowa 574, 284 N.W. 816, and White v. Center, 218 Iowa 1027, 254 N.W. 90, was considerably stronger than in the present case.

Further, we conclude plaintiff suffered no prejudice by the failure to submit to the jury the issue of reckless operation of defendant's automobile. As previously explained, plaintiff alleged and defendant admitted defendant was under the influence of liquor and this was the proximate cause of the collision and death. The jury was instructed (and no complaint is made thereof) to accept these admitted allegations as established facts and that to entitle plaintiff to recover it was necessary to find only that she was damaged. A finding for plaintiff on the issue of reckless operation, had it been submitted, would entitle her to nothing she was not already entitled to under the court's instructions as given.

It has been suggested plaintiff's decedent may not have assumed the risk of defendant's reckless operation although he did assume the risk of riding with defendant while intoxicated. Let this be admitted and that the jury could have so found. See in this connection Koepke v. Miller, 241 Wis. 501, 6 N.W.2d 670, 672. This would not have aided plaintiff. If, as plaintiff alleged and the jury was instructed without objection, the proximate cause of the collision was defendant's intoxication, assumption of the risk of such admitted cause (which the jury found) would be a complete defense even though defendant may have operated his car recklessly and plaintiff's decedent did not assume the risk of such reckless operation. (We use the term 'intoxication' to mean being under the influence of liquor.)

Plaintiff's argument she would have been better off if the jury had been allowed to find either, or both, reckless operation or intoxication would have merit if a finding adverse to her on the issue of defendant's intoxication had been permitted under the court's instructions. Then two chances for recovery would have been better for plaintiff than one--the jury might have found against her on one and for her on the other. However here, as previously stated, a finding for plaintiff on the issue of intoxication was mandatory.

II. Instruction 5, dealing with the defense of assumption of risk, first summarizes the allegations of defendant's answer pertaining thereto. Plaintiff complains that the instruction states in substance 'defendant alleges said Bohnsack joined with defendant and two others in the plan of procuring liquor in Hampton, then driving to Sheffield, drinking' etc., because it is said there is no evidence decedent joined in a plan to procure liquor.

This complaint is without merit. The quoted language merely refers to allegations in defendant's answer also set out in the first instruction to which no objection was made. Instruction 2 cautioned the jury that allegations of the petition and answer should not be considered as evidence but merely as claims of the parties. If there were no evidence decedent joined in a plan to procure liquor the instructions should not have referred to the allegation but the reference would not be sufficiently prejudicial to warrant reversal. Clayton v. McIlrath, 241 Iowa 1162, 1166, 1167, 44 N.W.2d 741, 744, and citations.

Here, however, we think there is circumstantial evidence decedent joined in a plan to procure liquor. The four men met in a tavern at Hampton, left together, were together until the liquor was purchased (although decedent and Harry Fielding...