Delay v. Kudart

• Decision Date: 05 May 1964
• Docket Number: No. 51256,51256
• Parties: Agnes R. DELAY, Administratrix of Louis R. Falt Estate, Appellant, v. Arthur R. KUDART, Administrator of Gordon Henrikson Estate, Appellee.
• Court: Iowa Supreme Court

Page 201

128 N.W.2d 201

256 Iowa 523

Agnes R. DELAY, Administratrix of Louis R. Falt Estate, Appellant, v. Arthur R. KUDART, Administrator of Gordon Henrikson Estate, Appellee.

No. 51256.

Supreme Court of Iowa.

May 5, 1964.

Francis J. Pruss, Cedar Rapids, for appellant.

Shuttleworth & Ingersoll, Cedar Rapids, for appellee.

THORNTON, Justice.

Plaintiff's decedent and defendant's decedent lost their lives in the automobile collision out of which this action arises. For convenience we will refer to them as plaintiff and defendant.

Plaintiff's action for wrongful death is in two divisions. The first is based on negligence wherein plaintiff riding in defendant's auto seeks to avoid the guest statute, section 321.494, Code of Iowa, 1958, I.C.A. He alleges he had been engaged to perform mechanical services on defendant's auto and had adjusted the carburetor and was riding in defendant's auto for defendant's benefit to determine whether the engine and carburetor were properly adjusted and performing properly. The second division is based on reckless operation by defendant.

The collision occurred about 9:30 p. m., April 14, 1961, on Highway # 74 in Linn County. Defendant was driving his 1956 Chevrolet in a southeasterly direction. Defendant's wife was seated in front, plaintiff was on her right. Defendant's car went into a skid and across the centerline of the highway and into the path of a northbound car. The front of the northbound car came into contact with the right-hand side of defendant's car. Defendant's Chevrolet was wrapped around the front end of the northbound car. All occupants of defendant's car were killed. The driver of the northbound car was so severely injured he recalled little if anything of the collision. No eye witnesses were found. Also no witnesses were found to testify to plaintiff's status as an occupant of defendant's car. Plaintiff seeks to prove his case in important detail by circumstantial evidence. The trial court directed a verdict for defendant at the close of plaintiff's evidence because of the insufficiency of plaintiff's evidence to show his status was other than a guest and to show reckless operation. Plaintiff appeals urging the sufficiency of the evidence in both instances.

I. Turning first to division one of the petition, when it appears plaintiff was riding in defendant's auto it is presumed plaintiff was a guest and plaintiff has the burden to prove his status was other than a guest. Livingston v. Schreckengost, Iowa, 125 N.W.2d 126, 127, 131, and citations. If plaintiff were riding in the auto for the purpose of determining whether the engine and carburetor were properly adjusted and performing properly at defendant's request he would not be a guest. Ritter v. Dexter, 250 Iowa 830, 95 N.W.2d 280; Winter v. Moore, Iowa, 121 N.W.2d 82; and Bodaken v. Logan, 254 Iowa 230, 117 N.W.2d 470.

Plaintiff seeks to prove his status circumstantially. An issue of course may be thus proved, but this evidence must be such as to make plaintiff's theory reasonably probable not merely possible, and more probable than any other theory based on such evidence. Generally, however, it will be for the jury or other trier of the facts to say whether the circumstantial evidence meets this test. See rule 344(f) 16, 58 I.C.A., Rules of Civil Procedure. Defendant contends the evidence produced does not reach the dignity of being circumstantial. If it does not, or if it does not make plaintiff's theory reasonably probable, not merely possible, and more probable than any other theory, the ruling of the trial court must be sustained.

Viewed in the light most favorable to plaintiff, the evidence is, plaintiff was an excellent mechanic and interested in fast cars. Defendant was a good mechanic, also interested in fast cars, capable of doing his own work, but did not have sufficient necessary tools. They were not good friends but were well acquainted. Plaintiff had tools and on occasion loaned tools to defendant. Defendant had installed a larger motor in his 1956 Chevrolet and had otherwise improved the car including the installation of three two-barrel carburetors, all to obtain greater speed. That shortly prior to April 14, 1961, the engine had a very slight knock in it. He discussed this condition with other mechanics. About 8:30 p. m. April 14th plaintiff's aunt saw a man wearing a red shirt in the garage used by plaintiff at the rear of the home of plaintiff and his aunt. She also saw a blue light or flame. She did not recognize the man. She did know defendant. Defendant often wore a red windbreaker jacket. He was wearing it early in the evening, about 5:30 p. m. He was wearing a windbreaker jacket when the collision occurred but there is no evidence of the color. Plaintiff was shown to be in the garage prior to 8:00 p. m. but there is no showing he was there when his aunt saw the man wearing the red shirt at about 8:30 nor that defendant's car was there. Plaintiff was wearing a grey plaid shirt. Following the collision a timing light that cast a blue light, and wrenches used in adjusting carburetors installed in series, were found in plaintiff's garage, not put away and in a position to sustain an inference of recent use. The timing light did not belong to plaintiff. Much of the evidence relating to the timing light and carburetor wrench was excluded on motion or not admitted but we are considering the evidence as though all of the evidence offered relative thereto was properly admitted.

Plaintiff further showed defendant, defendant's wife and he were riding in defendant's car driving in a northerly direction of Highway 74 at about 9:00 p. m. On two occasions, one while the car was in motion, the other while stopped, plaintiff and defendant were observed leaning forward in the car. The car was observed speeding up and slowing down, and turning around to proceed in a southerly direction.

Plaintiff contends the foregoing sustains his theory he was engaged to time the engine and was on Highway #74 for the purpose of determining if the motor was properly timed. We do not think the foregoing supports either. First, as to being engaged to work on the car, the evidence does not show plaintiff was near defendant's car until he is seen riding in it on the highway. There is no showing the car was near plaintiff's garage that day or any other time. If we assume the man in the red shirt was defendant and further assume he was using the timing light borrowed from one of the witnesses and using the carburetor wrenches (their ownership is not shown but we will assume they are plaintiff's) on his own car, we have established nothing helpful to plaintiff. Plaintiff's presence to work, help or advise has not been established. At least it must in some manner be shown plaintiff was present when some work was done on defendant's car. Next the action on the highway, the apparent testing and claimed listening to the motor. It is just as reasonable to assume defendant was merely showing plaintiff his car as it is to assume plaintiff was there for the purpose of determining if his work was successful in timing the car properly. It is true the benefit to be received by the owner or operator need not be the only purpose or sole motivating factor in furnishing transportation, it need only be a substantial factor. But there must be some evidence of this.

From the circumstances shown by plaintiff it does not follow, either as a matter of logic or human experience, either that defendant engaged plaintiff to time the car or that plaintiff was riding in the car to check its performance. This is true even if we assume plaintiff was in the garage with the defendant in a red shirt or windbreaker. The evidence simply does not show who was doing what. Plaintiff in support of his circumstantial evidence cites Claussen v. Estate of Johnson, 224 Iowa 990, 278 N.W. 297. An examination of that case and comparison with this shows the difference between evidence of facts supporting the theory advanced and evidence of facts that do not support the theory.

As observed by the trial court, all we know from the evidence is that around 8:30 p. m. April 14th defendant, his wife, and plaintiff were riding on the highway.

II. Plaintiff's division two alleges reckless operation of the car by defendant.

In pertinent part our guest statute, section 321.494, Code of Iowa, 1958, I.C.A., provides: 'The owner or operator * * * shall not be liable for any damages to any passenger or person riding * * * as a guest * * * unless damage is caused as a result of the driver * * * being under the influence of intoxicating liquor or because of the reckless operation by him * * *.'

Intoxicating liquor is not involved here.

Plaintiff seeks to show recklessness by the circumstances of defendant's car being a fast car capable of high speeds, the purpose of the trip, defendant's wife's pregnancy, and the physical facts.

Plaintiff's evidence sustains a finding the car was built to travel at high speeds, and that defendant was well aware of the highway, the curve and highway traffic. The defendant was driving the car for the purpose of testing it. That the Chevrolet was capable of going 135 m. p. h. was stricken on motion. The jury could also properly find the highway ran generally from northwest to southeast, it was of asphalt concrete, 24 feet wide with 9 foot shoulders, it ran slightly downhill from north to south at the point of impact, there was a 3~ curve in the roadway approximately 750 feet north of the point of impact. The point of impact was on the straightaway. Also the curve was constructed for safe travel at 70 m. p. h. and that a highway patrolman had traversed the curve in pursuit of violators in the 90's without any difficulty. From an engineer's testimony the finding could be made that assuming a side friction factor of 0.30 (a probable side friction factor) the curve could be negotiated at 99 1/2 m. p. h. before skidding would...