Clendenning v. Simerman, 43134.

• Decision Date: 12 November 1935
• Docket Number: No. 43134.,43134.
• Citation: 263 N.W. 248,220 Iowa 739
• Parties: CLENDENNING v. SIMERMAN.
• Court: Iowa Supreme Court

220 Iowa 739

263 N.W. 248

CLENDENNING

v.SIMERMAN.

No. 43134.

Supreme Court of Iowa.

Nov. 12, 1935.

Appeal from District Court, Keokuk County; D. W. Hamilton, Judge.

Plaintiff, as administrator of the estate of Margaret Clendenning, commenced this action to recover damages for the death of his intestate, against the defendant, the owner and operator of the car in which Margaret Clendenning was riding at the time of the injury that resulted in her death. Defendant answered, admitting decedent died as a result of injuries received while riding in his car, but denied that her administrator was entitled to recover under the law. At the close of plaintiff's testimony the court directed a verdict for defendant, and judgment for costs was entered. The theory of the motion by defendant was that the decedent was a guest and was not entitled to recover for negligence. Defendant appeals. Opinion states the facts.

Affirmed.

Paul H. Williams and Ralph N. Lynch, both of Des Moines, and C. G. Updegraff, of Sigourney, for appellant.

Walter K. Stewart, of Des Moines, and F. M. Beatty, of Sigourney, for appellee.

MITCHELL, Justice.

Oren Palmer was engaged in business in Keota, Iowa, as a wholesale distributor of beer. For several months prior to February 3, 1934, Dwight Simerman, the defendant, had been employed by Palmer. His job consisted of delivering beer and keeping the books. He worked seven days a week, from 7 in the morning until 6 at night. Palmer had a daughter, Carrie, who lived at his home, and who was employed as a telephone operator in Keota. On the 2d of February she talked to her father about making a trip to Des Moines, as she desired to do some shopping. That evening Carrie Palmer talked to Margaret Clendenning about making the trip with her. On the morning of February 3d Palmer talked to Simerman relative to taking the trip to Des Moines; said that he could not get away and that he wanted Simerman to take his daughter and Miss Clendenning to Des Moines so that Miss Palmer could do some shopping. Miss Clendenning was going to Des Moines for the purpose of trying to secure a position. Palmer told Simerman to fill up the gas tank and charge it to him, and this done. At about 11 or 11:30 that morning Simerman met Miss Palmer and Miss Clendenning and a young man by the name of Donald Holmes at the filling station. They all got into Simerman's Ford coupé and started for Des Moines. On the way to Des Moines, at the request of Mr. Palmer they delivered a keg of beer to a Mr. Keister at Delta. Around 2 o'clock they arrived in Des Moines and Carrie Palmer got out at Younker's corner. Miss Clendenning and Donald Holmes left the car together. By arrangement Simerman met Carrie Palmer at the corner of the Katz Drug Store between 6 and 6:30, after she had finished shopping. Later on they met Donald Holmes and Margaret Clendenning, and the four of them had dinner. Some time between 7:30 and 9 that evening the party started back home. Simerman was driving. Next to him, to his right, sat Miss Palmer, and next to her was Donald Holmes, upon whose lap Miss Clendenning was sitting. They drove out on Grand avenue to the west entrance of the Fair Grounds and then turned north. Then they turned east on University, on either Highway No. 63 or 163, the regular road to Oskaloosa. The lights on the Ford coupé were burning and the car was being driven at approximately twenty-five miles per hour. There were street lights on East University. A truck belonging to John Knapp, used by him in hauling coal for the Keating Coal Company, had broken down about fifty feet east of Thirty-Third street, and the driver was forced to park the truck and secure help. The bed of the truck was seven feet wide and the truck was parked so that about one foot of the bed of the truck was over the south curb of University, extending into the street. The taillight on the truck was burning. As the Ford coupé was being driven along the street, the truck was visible for more than a hundred feet, but somehow or other the driver of the coupé did not swing out far enough and that part of the box of the truck that was extending out into the street collided with the coupé, seriously injuring Miss Clendenning, who died later as a result of said collision.

Plaintiff was duly appointed administrator of the estate of Margaret Clendenning and commenced this action to recover damages for the wrongful death of his intestate, resulting from injuries sustained while said intestate was riding in an automobile owned and driven by the defendant. Defendant answered, admitting that deceased died as a result of injuries sustained on or about the 3d day of February, 1934, as a result of an automobile collision occurring while said deceased was riding in an automobile owned and driven by the defendant, but specifically denied that the plaintiff under the law of this state was entitled to recover from the defendant in any amount. At the close of plaintiff's testimony the court directed a verdict for the defendant, and judgment for costs was entered. The theory of the motion by defendant was that decedent was a guest and could not recover for negligence.

The plaintiff, being dissatisfied with the ruling of the lower court, has appealed to this court.

[1] The only question involved in this appeal is the status of appellant's decedent while riding in the appellee's automobile at the time of the accident. Appellant's cause of action being predicated upon mere negligence, the burden was upon him to prove that his decedent's status while riding in the appellee's car as a passenger, was not such a one that would exclude a recovery for mere negligence as provided in section 5026-b1 of the 1931 Code of Iowa.

It must be kept in mind that this action is based upon negligence. It is the claim of the appellant that his decedent was not a guest in the car of the appellee, and that as she was not a guest he is entitled to recover if he proves negligence on the part of the appellee and freedom from contributory negligence on the part of his decedent.

Let us briefly review the facts in this case. Oren Palmer, the father of Carrie Palmer, was appellee's employer. Appellee had worked for him for several months prior to the accident. He worked every day in the week and his hours were from 7 in the morning until 6 at night. The duties he was to perform consisted of delivering beer in trucks owned by Palmer whenever there were deliveries to be made, and the rest of the time he was busy keeping the books. Carrie Palmer desired to go to Des Moines to do some shopping. They lived at Keota, in Keokuk county, some distance from Des Moines. On the morning of February 2d Carrie Palmer inquired of her father if he could take her to Des Moines, and that evening she talked with Margaret Clendenning, who was a friend of hers, saying she was going to make the trip to Des Moines and asked Miss Clendenning to go with her. Miss Palmer told her father that night that she had talked to Margaret Clendenning about going with her, and the father said he had no objections to that. On the next morning, February 3d, Palmer talked to his employee, the appellee, about making the trip to Des Moines, and told him that his daughter desired to do some shopping there and that Miss Clendenning was going with her. Palmer told the appellee to fill the gas tank, which he did, and Palmer paid for the gas. According to Miss Palmer's story, she did not know that the appellee was going to take them to Des Moines until that morning. Arrangements were made to meet her at the gas station, and later on they met Miss Clendenning and Donald Holmes. How Donald Holmes happened to go along on the trip does not appear in the record, except that he was a friend of Margaret Clendenning, Carrie Palmer, and Dwight Simerman. They took the appellee's car, a Ford coupé, and into the front seat these four people crowded. Shortly before they left, Palmer told appellee that he had a keg of beer he wanted delivered at Delta, which is only a short distance from Keota on the way to Des Moines. The beer was placed in the back end of the car and the journey to Des Moines was started. At Delta they stopped and delivered the beer and Simerman collected the amount due. They arrived in Des Moines about 2 o'clock. Miss Palmer got out at the Younker corner, and Miss Clendenning and Holmes got out together a little further on. Between Miss Palmer and the appellee, arrangements were made to meet at 6 o'clock at the Katz Drug Store corner. They did meet at that time, and later on they met Miss Clendenning and Donald Holmes, and the four of them had dinner together. Somewhere between 7:30 and 9 o'clock they started on the journey home, the accident occurring between 8 and 9 o'clock that evening.

The sole question is whether or not Miss Clendenning was a guest. If she was a guest, then, under the statutes of this state, her estate is not entitled to recover and the lower court was right in directing a verdict. The appellant sues upon the theory that she was not a guest and bottoms his right to recover upon the negligence of the appellee.

This court, speaking through Justice Kindig, in the case of Knutson v. Lurie, reported in 217 Iowa, 192, on page 195, 251 N. W. 147, 149, said:

“One may be a passenger in an automobile without being a guest, a mere passenger by invitation, or a passenger for hire in the legal sense of the word. There are, in fact, a multitude of persons riding in cars daily who are not guests, passengers by mere invitation, or passengers for hire within the legal meaning of that term. A person riding in an automobile may be there because of the relationship of master and servant existing between him and the owner. In other instances, the rider in an automobile may be there (without the relationship of master and servant) for the definite and tangible benefit of the owner or operator; or such person may be in the automobile (without the...