Claussen v. Johnson's Estate
| Decision Date | 15 March 1938 |
| Docket Number | 44019. |
| Citation | 278 N.W. 297,224 Iowa 990 |
| Parties | CLAUSSEN v. JOHNSON'S ESTATE. CECIL v. JOHNSON. THORNSTAD v. SAME. |
| Court | Iowa Supreme Court |
Appeal from District Court, Harrison County; Grover W. Brown, Judge.
In this probate proceeding three claims were filed against a decedent's estate in the course of administration. The claims were for damages allegedly caused by the decedent's reckless operation of a motor vehicle. From the judgments allowing the claims, decedent's administratrix has appealed.
Affirmed.
Roy E Havens, of Logan, and Mitchell & Johnson, of Council Bluffs for appellant.
William P. Welch and J. A. Murray, both of Logan, and Raymond Klass, of Cedar Rapids, for appellees.
On March 21, 1936, at about 7:30 p. m., a Ford automobile being driven south on combined Primary Highways 30 and 75 collided, first with a nonmoving trailer attached to a Dodge automobile, and then with a truck that was traveling north. This occurrence was at a point about 7 miles south of Missouri Valley. The highway was straight and level for miles in either direction. The four occupants of the Ford lost their lives in this catastrophe so immediately upon its happening that none spoke afterwards. One of the travelers in the Ford was W. B. Johnson, owner of the car. Against his estate a claim was filed by the administratrix of the estate of each of the three other decedents. In each claim it was alleged that the claimant's decedent was riding in the Ford as Johnson's guest, and that the decedent lost his or her life because of Johnson's reckless operation of the motor vehicle. There was a trial upon the claim filed by the administratrix of the estate of Andy L. Claussen, under stipulations that the two other claims be considered as tried upon the same record. Following a jury verdict for the administratrix upon the Claussen claim, each of the three claims was allowed, agreeably to the stipulations. The administratrix of the W. B. Johnson estate has appealed from the allowance of each of the three claims.
The first question presented is whether there was evidence that warranted submitting to the jury the question whether Johnson was driving the Ford at the time of the accident. Bearing on that matter, it is undisputed that Johnson owned the car and frequently had been driving it for more than a year. At a few minutes after 7 o'clock, on this evening of March 21, the Ford, headed west, with Johnson sitting behind the wheel, was standing in front of the home where decedents Claussen and Cecil resided, about two blocks from the residence of Johnson in the city of Logan. Sitting in the front seat with Johnson was decedent Cecil and in the rear seat were decedents Claussen and Coralyss Hunt. Attendance upon a school entertainment in Council Bluffs is shown to have been the purpose of those in the car. With the occupants sitting in the manner described, Johnson driving, the car left the Claussen home. No testimony accounts for the car or its movements or its occupants thereafter until it approached the place of the accident. Without relating here the details of the collision, it is sufficient to say that the impact threw the two occupants of the front seat from the car, and to a considerable distance, and that these two persons were Johnson and Cecil, who sat in the front seat as the car left the Claussen home in Logan. The other two occupants remained in the rear seat that they occupied at the commencement of the trip. Thus it appears that the only persons who were in the front seat where they could have been driving the car at the time of the collision were Johnson and Cecil. The distance between the point of departure at Logan and the place of the accident was about 15 miles, with the towns of Missouri Valley and Loveland intervening. The time consumed in traveling the 15 miles was less than half an hour.
In the light of this circumstantial evidence, but two theories would suggest themselves, one that Johnson was driving the Ford at the time of the accident, the other that the person who was driving was Cecil. Asbach v. Chicago, B. & Q. Ry. Co., 74 Iowa 248, 37 N.W. 182, 183. See, also, Reimer v. Musel, 217 Iowa 377, 251 N.W. 863; Westenburg v. Johnson, 221 Iowa 134, 264 N.W. 18. It is apparent that the only thing that sustained the theory that Cecil was driving was the circumstance that he was in the front seat at the time of the accident. That is, he was where he could and might have been driving. To sustain the other theory, that Johnson was driving, there is the same circumstance that he was in the front seat, and the additional facts that it was his own car that was being driven, and that 15 miles up the road, at the commencement of a comparatively brief automobile trip that was to be made to Council Bluffs, he was driving. Less than half an hour had elapsed. No discussion is necessary to demonstrate that the two theories were not of equal probability. To reasonable minds, the theory that Johnson was still driving at the time of the accident would easily be the more convincing, and the more readily acceptable. But the query remains whether these facts and circumstances are of such a nature and so related to each other that a jury would be warranted in finding that the conclusion that Johnson was driving was the only one (in this case the only one of two) that could fairly or reasonably be drawn. In view of the circumstances and facts that have been set out, we are of the opinion that the answer should be in the affirmative. The only other conclusion, that is, that Cecil was driving, was a possibility, but unconfirmed by facts or circumstances of a supporting nature, looking in the direction of probability. And to the extent that the theory that Cecil was driving may lack probability, added reasonableness characterizes the other theory, because there were but the two alternatives. It was not a situation in which two different deductions appeared to be equally supported, as in Tyrrell v. Skelly Oil Co., Iowa, 270 N.W. 857.
The jury was instructed that, to recover, claimant must prove by the preponderance of the evidence " that at the time of his death the said Andy L. Claussen was riding as a guest in the automobile operated by the said W. B. Johnson." Claimant did not object to nor appeal from the giving of this instruction. Appellant moved to vacate the verdict and for new trial, one ground being that there was no evidence in the record to sustain a finding by the jury that claimant's decedent was riding in the car as a guest. Appellant assigns as error the overruling of the mentioned ground of the motion. The instruction having been the law of the case governing the jury, there must be a reversal if the evidence was insufficient to warrant the finding of fact the instruction required. Pfannebecker v. Chicago, R.I. & P. Ry. Co., 208 Iowa 752, 226 N.W. 161.
To prove that decedent Claussen was a guest, claimant relies upon the circumstances found in the record. In addition to the evidence already set out, it was shown that three of the decedents, Johnson, Claussen, and Cecil, for years had been friendly acquaintances, living in the town of Logan frequently accompanying each other, often with other members of their families to places of entertainment, such as school contests, football and basketball games, and band concerts. On the Thursday evening preceding the Saturday night of the accident, Cecil...
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