Edwards v. Kirk

• Decision Date: 12 December 1939
• Docket Number: 44892.
• Citation: 288 N.W. 875,227 Iowa 684
• Parties: EDWARDS v. KIRK.
• Court: Iowa Supreme Court

288 N.W. 875

227 Iowa 684

EDWARDS v. KIRK.

No. 44892.

Supreme Court of Iowa.

December 12, 1939

Appeal from District Court, Emmet County; G. W. Stillman, Judge.

Appeal from an order sustaining a motion to strike the defense of assumption of risk. The opinion states the facts.

Affirmed.

J. W Morse, of Estherville, and Kern & Faville, of Des Moines, for appellant.

S. G Bammer and William S. Johnston, both of Estherville, for appellee.

HAMILTON, Justice.

Action by plaintiff-appellee as administrator of the estate of his minor son to recover damages for the death of such minor growing out of a collision between a motorcycle, upon which the said minor was riding as a guest, and appellant's automobile. The answer was (1) a general denial; (2) that the driver of the motorcycle was negligent, which negligence was the sole and proximate cause of the injury; (3) contributory negligence of plaintiff's decedent; (4) that plaintiff's decedent assumed the risk of the negligent operation of the motorcycle by the driver thereof. On motion the trial court struck from the answer the defense of assumption of risk, and it is from this ruling of the trial court that this appeal is taken.

It is the contention of the appellant that the doctrine of assumption of risk has been recognized by this court as being applicable to a guest in automobile cases, and, if plead and proven, is a valid defense. He cites and relies upon White v. McVicker, 216 Iowa 90, 246 N.W. 385, and Stingley v. Crawford, 219 Iowa 509, 258 N.W. 316.If it was a valid defense, then it was error to strike the same and, since the matter stricken from the answer was of a character such as to involve the merits and to materially affect the final decision of the case, the order was appealable.

We then have the sole question as to whether or not the appellant had a right to plead in his answer the defense of assumption of risk. Appellant does not claim that the plaintiff's decedent assumed the risk of negligent acts upon the part of the appellant, James Kirk. The thing contended for is that appellant had the right to plead as a defense that appellee's decedent voluntarily exposed himself to the negligent and reckless operation, by his brother, of the motorcycle upon which he was riding as a guest; that his injuries proximately resulted from such operation; and that he assumed the risk thereof. In making this claim, appellant recognizes the rule that, generally speaking, the doctrine of assumption of risk, in the strict sense the term is used under the common-law, is limited to cases arising or growing out of some kind of contractual relationship such as master and servant, but he asserts that there is another sense in which the term " assumption of risk" has been used which does not depend on a contractual relationship and that is where the plaintiff, by his conduct, has brought himself within the operation of the maxim, Volenti non fit injuria, and, therefore, cannot recover. This maxim has been defined to be: " That to which a person assents is not esteemed in law an injury", or " He who consents cannot receive an injury" . Appellant points out that our court recognized this doctrine in the case of White v. McVicker, supra, where the subject is fully discussed. That was a guest case, but appellant contends the rule is equally applicable in an action by the guest against a third party even though no contractual relationship exists. In that case, it is recognized and mention is made of the fact that the reference to this doctrine as assumption of risk was perhaps a misnomer, but, regardless of what it is called, the holding is expressed in the following language [ 216 Iowa 90, 246 N.W. 386]:

" We held in these guest cases that contributory negligence is not available as a plea. Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46.But the question with which we are now confronted is not controlled by the Siesseger Case. While the doctrine of contributory negligence and assumption of risk may arise under the same set of facts and sometimes thus overlap each other, yet we have consistently distinguished them and held that they are distinct and separate and must not be confounded with each other. [Citing long list of cases.]

As to the doctrine we are about to discuss, the use of the term ‘ assumption of risk’ is probably a misnomer, but the court seems to have generally used the term, and we will follow its practice of using this term to indicate this doctrine."

The court then discusses some of the decisions and finally makes application of the rule in the following pronouncement: " The sum total of the application of this doctrine simply stated is that, where one is placed in the position where he has his choice of doing or not doing a given act, this doctrine applies. We take it to be the rule, therefore, under this doctrine, that, where one voluntarily becomes a guest in an automobile, with a knowledge that the driver is incompetent or inexperienced, or after he has assumed his position in the car, it comes to his knowledge that the driver is intoxicated, or is reckless in his driving, and with such knowledge on his part he aids or encourages the driver, or acquiesces or joins or co-operates in such recklessness, he takes the chance of an accident, and, in case an accident occurs, arising from such known incompetency, inexperience, or intoxication of the driver, or other such known recklessness, then plaintiff cannot recover."

It is because of our holding in the above case that appellant has seen fit to tender this doctrine as a defense in the fourth division of his answer and which he contends the court erroneously struck from the files, on the ground that it was not a proper defense.

In states which have so-called " Guest Statutes", such as ours, Code 1935, § 5026-b1, the courts are of necessity driven to the adoption of some such rule as that announced in the McVicker case in order to find any basis upon which the guest might be barred from recovery. The cause of action, under our guest statute, is not based on negligence, but upon recklessness, and, since we have held that " recklessness is more than negligence, it follows that contributory negligence is not an element to be considered or dealt with, either by pleading, proof, or instruction of the court, in cases brought under this statute." Siesseger v. Puth, supra [213 Iowa 164, 239 N.W. 54]. Courts and textbook writers generally recognize the fact that there is a distinction between the doctrine of assumption of risk and contributory negligence. This fact is mentioned in the McVicker case. A very simple and easily understood illustration of the difference is given in Cooley on Torts, Throckmorten's Student Edition, 1930, Sec. 331, p. 658, as follows: " The doctrine of assumption of risk is sometimes confused with that of contributory negligence, but is properly to be distinguished from it. A pedestrian knowing that the walk on one side of the street is in a dangerous condition assumes the risk of injury from it when he leaves a safe walk on the other side to pass over it, whereas, contributory negligence in such case would consist in the failure to use ordinary care under the circumstances while actually using the walk. Assumption of risk involves more or less deliberation, whereas contributory negligence implies lack of care, and hence the absence of deliberate choice."

The Vermont Court, in a well considered case, Gover v Central Vermont R. Co., 96 Vt. 208, 118 A. 874, 877, reviews the authorities dealing with this question and lays down some specific rules to be observed in applying the maxim above referred to as follows: " If the application of the maxim ‘ volenti non fit injuria’ is recognized as extending beyond contractual relations, the limitations of the doctrine of assumption of risk based thereon must be looked for in the terms of the maxim itself. Any other course would be illogical, and the limitation could not escape being purely artificial. Courts that have adopted the contractual limitation have experienced this difficulty. Tested by the maxim, what are the limitations of the doctrine as applied to the case in hand? It is said in Warren v. Boston & Maine R. R., 163 Mass. [484] 488, 40 N.E. 895, that the doctrine of assumption of risk, as distinguished from the doctrine of reasonable care, in an action between persons not having relations by contract, must be confined to cases where the plaintiff knew and appreciated the danger and voluntarily put himself in the way of it. To the same effect is Gentzkow v. Portland Ry. Co., 54 Or. 114, 102 P. 614, 135 Am.St.Rep. 821; Illingsworth v. Boston Elec. Co., 161 Mass. 583, 37 N.E. 778, 25 L.R.A. 552.It is not enough that the plaintiff knew and appreciated the danger. Was it a voluntary act within the meaning of the maxim? To be voluntary, an act must be done of one's own free will. The word emphasizes the idea of freedom from constraint. Webster's New Int. Dict. The true meaning of the volens of the maxim is referred to as ‘ intelligent choice’ in Thomas v. Quartermaine, 18 Q.B.Div. 685; and the same idea is aptly expressed in Chicago, R.I. & P. R. Co. v. Lewis, 103 Ark. 99, 145 S.W. 898, where it is said that the doctrine is based on voluntary exposure to a known danger, and can be applied only when a person may ‘ reasonably elect’ whether or not he shall expose himself to it. We said in Carbine's Adm'r v. Bennington & Rutland R. Co., 61 Vt. 348, 17 A. 491, which was a master and servant case, that the doctrine applied if the servant ‘ knowingly and deliberately assumes a risk that leads him into immediate danger.’ In effect the English cases hold that mere knowledge of the risk does not necessarily involve consent to the risk, and that the maxim does not...