Booth v. General Mills

• Decision Date: 16 October 1951
• Docket Number: No. 47931,47931
• Citation: 243 Iowa 206,49 N.W.2d 561
• Parties: BOOTH v. GENERAL MILLS, Inc., et al.
• Court: Iowa Supreme Court

Page 561

49 N.W.2d 561

243 Iowa 206

BOOTH v. GENERAL MILLS, Inc., et al.

No. 47931.

Supreme Court of Iowa.

Oct. 16, 1951.

Rehearing Denied Jan. 11, 1952.

Hallagan & Lucier, Des Moines, for appellant General Mills, Inc.

Charles D. Van Werden, Winterset, for appellant Vincent Shocklee.

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

HAYS, Justice.

Action for damages, under the guest statute, I.C.A. § 321.494, on account of the death of plaintiff's decedent. Plaintiff's petition alleges, in two counts, recklessness and intoxication on the part of the defendant Shocklee, driver of the car. By special interrogatories, the jury found for plaintiff on both counts, and allowed damages. Defendants have appealed. Hereinafter, all reference to plaintiff refers to the deceased, Roy Adams.

We are concerned primarily with but two propositions, i. e., the question of the assumption of risk, and the amount of the damages awarded.

The case is a companion one to Agans v. General Mills, Iowa, 48 N.W.2d 242, as it involves the same accident. Defendant Shocklee, a salesman for the defendant General Mills, was operating a car owned by it. Under the record before us, we assume that plaintiff was a guest and that at the time of the collision, in which the plaintiff was killed, Shocklee was operating the car in a reckless manner and was in an intoxicated condition.

I. Appellants contend that the record shows as a matter of law, that the plaintiff assumed all risks incidental to both the recklessness and the intoxicated condition of the defendant Shocklee, and that the trial court erred in not so holding.

Assumption of risk is an affirmative defense which the pleader has the burden of proving. Evans v. Holsinger, Iowa, 48 N.W.2d 250; White v. Zell, 224 Iowa 359, 276 N.W. 76. Where it appears that the guest aided, encouraged, cooperated or acquiesced in the driver's conduct, he cannot recover if death or injury resulted therefrom. The rule is applicable where one is placed in a position where he has a choice of doing or not doing a given act. White v. McVicker, 216 Iowa 90, 246 N.W. 385; Thornbury v. Maley, Iowa, 45 N.W.2d 576.

It is Appellants' claim that at the time plaintiff entered defendants' car, just shortly before the fatal accident, he knew or should have known that Shocklee was intoxicated. Where the facts clearly show such a situation, there can be no recovery. Garrity v. Mangan, 232 Iowa 1188, 6 N.W.2d 292; Evans v. Holsinger, Iowa, 48 N.W.2d 250. We have also held that, where the evidence shows that the driver was not obviously intoxicated and did not so appear to the guest, the question of assumption of risk is for the jury, Augusta v. Jensen, 241 Iowa 697, 42 N.W.2d 383. While this record shows quite clearly that Shocklee had been drinking beer, prior to the time plaintiff entered the car, and it also shows that immediately after the accident, Shocklee was intoxicated, there is a conflict in the evidence as to whether plaintiff saw Shocklee prior thereto, while all of the testimony is to the effect that at that time, there was no visible indication that Shocklee was intoxicated. We think the case comes under the rule announced in Agans v. General Mills, Iowa, 48 N.W.2d 242; and Augusta v. Jensen, supra, and there was no error in submitting the question to the jury.

II. Appellants also assert that plaintiff assumed all risk incidental to the reckless driving. As before stated, we assume as established, the fact of reckless driving on the part of Shocklee. Does the record show that plaintiff aided, abetted, cooperated or acquiesced in the same? Assuming the defense of assumption of risk, as to recklessness, to be properly in the case, we are satisfied that it was a question for the jury to decide. The record shows that Shocklee and plaintiff were in the front seat of the car. Mr. Agans and Mr. Henrichs were in the rear seat. It appears, without dispute, that it was not until they had driven a distance of some eight to ten miles that Shocklee commenced driving at a speed of 70 to 80 miles per hour and zig-zagging across the highway. While denied by Shocklee, there is evidence that Agans remonstrated with Shocklee about the speed and manner of his driving, which Shocklee ignored. So far as the plaintiff is concerned, the record shows that he merely sat slumped down in the seat. If this showing is sufficient to raise the question of assumption of risk, the question as to whether the plaintiff had a choice of doing or not doing a given act, and the propriety of course which he did adopt, is clearly for the jury.

III. Appellants also assert that the verdict is the result of...