Bridges v. Welzien, No. 45663.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtBLISS
Citation300 N.W. 659,231 Iowa 6
PartiesBRIDGES v. WELZIEN et al.
Decision Date18 November 1941
Docket NumberNo. 45663.

231 Iowa 6
300 N.W. 659

BRIDGES
v.
WELZIEN et al.

No. 45663.

Supreme Court of Iowa.

Nov. 18, 1941.


Appeal from District Court, Franklin County; O. J. Henderson, Judge.

Action at law to recover damages for death of intestate alleged to have been caused by the negligence of the defendant, Wallace Welzien, in the operation of a motor truck belonging to his father, and co-defendant, in a collision with an automobile driven by the intestate. Judgment for plaintiff is affirmed on the appeal of defendants.

Affirmed.

[300 N.W. 660]

Wayne F. Kemmerer, of Dows, and Leming & Hobson, of Hampton, for appellants.

Harvey Uhlenhopp and James E. Coonley, both of Hampton, for appellee.


BLISS, Justice.

Just two questions are submitted for our determination. One is whether the trial court erred in submitting to the jury the issue of whether the truck, at the time of the collision, was being driven with the consent of its owner. The other question is whether the court erroneously stated the law in instructing the jury on this issue. The principles of law which apply are well settled. Passing to the facts which determine whether the issue was rightly submitted to the jury, we find that the father was engaged in drainage construction work, in which business the truck involved was used. The son, Wallace, was an employee of his father, and among his other duties, used the truck in his father's business. Both the father and son are married, and live across the street from each other in the town of Dows. About half of the time the truck was kept at the home of the son. It is conceded by the appellants that the son, with the consent of his father, had for some time driven this truck in the conduct of his own affairs, and for the business and pleasure of

[300 N.W. 661]

himself and his wife. But appellants also claim that thereafter the father procured for his son an old Whippet car and told him to use it in his own affairs, and not to use the truck for himself or family “if it was not necessary.” There is testimony that after the son had the Whippet, he continued to use the truck for the business and pleasure of himself and family. A disinterested witness, the town night marshal, testified to having seen him “drive the truck up town after supper two or three times a week and maybe oftener.” On a few of these occasions, his wife would be with him. Some of these times, they would drive to a show, and return home in the truck. He also testified that he had seen the son drive the truck on Sunday four or five times, and sometimes his wife was with him. This witness testified that since the collision, he had seen the son drive the truck. Another neighbor saw the son drive the truck. One of these times was the Sunday before the collision.

On Sunday October 29, 1939, the day of the collision, the son and his wife were to have dinner with his wife's sister's family at Ackley, about 14 miles away, and the wife wished to take some baby clothes to her sister. The Whippet could not be started, and the son went across the street to get his father's Pontiac passenger car to use, but his mother told him his father had driven it to the town of Williams. The son then took the truck and he and his wife went on their way to Ackley. It is clear that the trip was in no way connected with the father's business. The intersection collision occurred about 5 miles from Dows. There is nothing in the record to show that the father had any knowledge of this trip until afterwards.

[1][2][3] I. The plaintiff based her right of recovery solely upon section 5037.09 of the 1939 Code which provides that where damage is caused by the negligence of one driving the car, with the consent of its owner, the latter is liable. As this court has said at different times, the defense of non-consent is one which can be easily made, with little probability that it can be met with direct refutation. It is not necessary that the plaintiff adduce such direct testimony. When the ownership of the motor vehicle is admitted, as it is in this case, a prima facie case is made on this issue by the plaintiff, or as it is sometimes...

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16 practice notes
  • Highland Golf Club v. Sinclair Refining Co., Civ. No. 101.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • February 3, 1945
    ...cases. State v. Hartwick, 1940, 228 Iowa 245, 290 N.W. 523; State v. Crutcher, 1941, 231 Iowa 418, 1 N.W.2d 195; Bridges v. Welzien, 1941, 231 Iowa 6, 10, 300 N.W. 659. As to presumptions or inferences, see 25 Iowa Law Review 817; Heffter v. Northern States Power Co., 1927, 173 Minn. 215, 2......
  • Briner v. Hyslop, No. 68228
    • United States
    • United States State Supreme Court of Iowa
    • August 17, 1983
    ...N.W.2d 823, 825 (1967), and there must be a sufficient showing to the contrary if the owner would avoid that finding. Bridges v. Welzien, 231 Iowa 6, 8, 300 N.W. 659, 661 (1941). There is no dispute that McLane consented to Hyslop driving the truck to Rowley, Iowa. McLane now argues, howeve......
  • Davidson v. Vast, No. 46078.
    • United States
    • United States State Supreme Court of Iowa
    • June 15, 1943
    ...is not reasonably probable that the jury was misled by the portions of instruction 22 of which defendant complains. See Bridges v. Welzien, 231 Iowa 6, 10, 11, 300 N.W. 659. V. Defendant filed a counterclaim against plaintiff and a cross petition against the son who was part owner of the pi......
  • Abel v. Dodge, No. 52035
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1967
    ...256 Iowa 744, 128 N.W.2d 910, deal at some length with the question of liability under this statute. Both quote from Bridges v. Welzien, 231 Iowa 6, 300 N.W. 659, which reviews our decisions up to then involving the consent An annotation to Souza v. Corti, 22 Cal.2d 454, 464, 139 P.2d 645, ......
  • Request a trial to view additional results
16 cases
  • Highland Golf Club v. Sinclair Refining Co., Civ. No. 101.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • February 3, 1945
    ...cases. State v. Hartwick, 1940, 228 Iowa 245, 290 N.W. 523; State v. Crutcher, 1941, 231 Iowa 418, 1 N.W.2d 195; Bridges v. Welzien, 1941, 231 Iowa 6, 10, 300 N.W. 659. As to presumptions or inferences, see 25 Iowa Law Review 817; Heffter v. Northern States Power Co., 1927, 173 Minn. 215, 2......
  • Briner v. Hyslop, No. 68228
    • United States
    • United States State Supreme Court of Iowa
    • August 17, 1983
    ...N.W.2d 823, 825 (1967), and there must be a sufficient showing to the contrary if the owner would avoid that finding. Bridges v. Welzien, 231 Iowa 6, 8, 300 N.W. 659, 661 (1941). There is no dispute that McLane consented to Hyslop driving the truck to Rowley, Iowa. McLane now argues, howeve......
  • Davidson v. Vast, No. 46078.
    • United States
    • United States State Supreme Court of Iowa
    • June 15, 1943
    ...is not reasonably probable that the jury was misled by the portions of instruction 22 of which defendant complains. See Bridges v. Welzien, 231 Iowa 6, 10, 11, 300 N.W. 659. V. Defendant filed a counterclaim against plaintiff and a cross petition against the son who was part owner of the pi......
  • Abel v. Dodge, No. 52035
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1967
    ...256 Iowa 744, 128 N.W.2d 910, deal at some length with the question of liability under this statute. Both quote from Bridges v. Welzien, 231 Iowa 6, 300 N.W. 659, which reviews our decisions up to then involving the consent An annotation to Souza v. Corti, 22 Cal.2d 454, 464, 139 P.2d 645, ......
  • Request a trial to view additional results

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