Ellingson v. Kramer

• Decision Date: 14 January 1964
• Docket Number: No. 51105,51105
• Citation: 125 N.W.2d 777,255 Iowa 1257
• Parties: Elling J. ELLINGSON, Administrator of the Estate of Kenneth McCollough, Appellant, v. Harold KRAMER, Appellee.
• Court: Iowa Supreme Court

Page 777

125 N.W.2d 777

255 Iowa 1257

Elling J. ELLINGSON, Administrator of the Estate of Kenneth McCollough, Appellant, v. Harold KRAMER, Appellee.

No. 51105.

Supreme Court of Iowa.

Jan. 14, 1964.

Guthrie & Blackburn, Webster City, for appellant.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, for appellee.

SNELL, Justice.

This is an action for damages following the death of a 15 year old boy who perished in a fire in a building owned by defendant. Plaintiff's case has been prosecuted with resourcefulness and skill but is lacking in evidentiary support. Speculation and conjecture will not take the place of evidence.

Plaintiff is the administrator of the estate of a 15 year old unemancipated son of Robert D. and Neva McCollough.

On February 19, 1961 defendant, Harold Kramer, was the owner and operator of a truck stop consisting of a station, cafe, bunkhouse and shop. The bunkhouse and shop were in a quonset type building separate from the other buildings. The bunkhouse area consisted of two stories. The first floor contained a trucker's lounge, shower, utility room, living quarters for defendant's family, and two stairways. On the second floor there were seven bedrooms, a hall, stairway, an unfinished bath and a storage room. Defendant and his wife have eight children. Some of the upstairs bedrooms were used by their sons. Three employees were also housed upstairs. Other bedrooms were available to and were used by transient truck drivers.

Robert D. McCollough, father of decedent, is a mechanic. He had formerly been employed by defendant but had been unemployed for a few weeks on February 19, 1961. As a part of his compensation when he was working he had free parking for his trailer house and water and electricity therefor. He testified that he 'presumed' his tenancy had been terminated but he, his wife and children were still living in the trailer house parked on defendant's premises. Neva McCollough, his wife, remained in defendant's employ as night waitress and cook in the cafe. She was on duty the night of February 18th and 19th.

Kenneth Davis had been employed by defendant as a mechanic for three or four weeks. He slept in the bunkhouse. About a week prior to February 19th while smoking he had set fire to his bedding. Defendant admonished him against smoking in bed.

Davis did not drink while working. There is no evidence that defendant knew anything about Davis' drinking habits. During the evening of February 18th and continuing into the early hours of February 19th Davis was drunk. Mr. McCollough had been loafing around the truck stop since morning. Some time after midnight he first observed Davis in the cafe. About 3 A.M. Davis asked McCollough to help him to the bunkhouse. McCollough did so as Davis obviously needed help. On the way to the bunkhouse Davis gave McCollough two bottles of beer from his car and lit a cigarette. With some difficulty, and McCollough's help, Davis got through the door into the bunkhouse and started toward the stairs. He had a cigarette in his hand. McCollough testified that he watched for a moment and then returned to the cafe. He could not say where Davis went.

Defendant, Kramer, had gone to bed in his own quarters in the bunkhouse about midnight and knew nothing about these activities.

On February 18th the electric power from the regular utility lines failed. Defendant's auxiliary electric plant did not serve McCollough's trailer house. Because of the power failure the oil furnace heating the McCollough trailer house would not work. To escape the cold McColloughs took their children to their grandparents' home in Webster City. Kenneth McCollough, their 15 year old son, plaintiff's decedent, was told to stay in Webster City 'but he changed his mind' and returned to the truck stop.

During the evening of February 18th decedent, together with Mervin Kramer, a son of defendant, double dated with two young girls. The boys had liquor with them and drank during the evening. The boys took the girls home about midnight and then returned to the cafe. They met a young man named Darrell Hetland. Decedent told his parents he was going to spend the night at the Hetland home in the country. Their plans did not mature. After some time in the cafe the three boys left. They rode around and finished a fifth of whiskey.

About 3 A.M. the three boys went to bed in defendant's bunkhouse. One of the boys was smoking when they entered the bunkhouse, but put out his cigarette. Mervin Kramer and Larry Kramer, his brother, regularly occupied an upstairs corner room next to the storage and shop area. This room had an extra bed. The three boys joined Larry who had retired earlier. Apparently no one, except the four boys in the room, knew that Darrell Hetland and Kenneth McCollough were in the building.

About an hour after Mr. McCollough had helped Davis to the bunkhouse Mr. McCollough was sitting in the cafe with two other men. A fire was reported by a man running in the door. The bunkhouse was on fire. The men attempted rescue of the occupants. Defendant, who had been sleeping in his downstairs apartment heard someone 'holler' 'fire.' He went upstairs and 'made one round in the hallway and woke everybody up.'

The four boys, asleep in the corner room, were wakened by the fire or the noise. There was smoke and fire in the hallway. With very little effort they broke through a wall into the storage and shop area. Mervin and Larry Kramer and Darrell Hetland escaped through this hole without serious injury. Kenneth McCollough went into the hall and perished. Kenneth Davis and a granddaughter of defendant also died in the fire.

Kenneth McCollough, the decedent, had a medical history of asthma and shortness of breath. The cause of his death was given as suffocation and massive third degree burns. Because of our conclusion on other matters we need not consider matters that may have contributed to his failure to escape with his companions.

Both sides rested after the introduction of plaintiff's evidence.

Extensive and comprehensive motions to strike and to direct a verdict were made and considered.

The trial court in a carefully considered opinion expressed doubt as to the sufficiency of the evidence to support a verdict but submitted to the jury three main issues.

These issues were the status of decedent as an invitee; was defendant negligent with respect to Davis' conduct; and if so did Davis cause the fire.

The jury returned a verdict for plaintiff. On motion of defendant for judgment notwithstanding the verdict the verdict was set aside. Plaintiff appeals.

I. Plaintiff's claim that decedent's status was contractual because of his parents' employment is not supported by the record. The employment of decedent's father had been terminated and he 'presumed' his trailer house tenancy had terminated. Decedent's mother was still employed but there is no evidence in the record that living quarters for the family were furnished as part of her compensation. There is nothing in the record to show that she had ever been in or near the bunkhouse. The situation is not comparable to the cases where a minor accompanies a parent who is an invitee. There is no claim that there ever was any contract or agreement relative to housing in the bunkhouse. There was no relationship of innkeeper and guest. There is no claim that failure of electricity to the trailer house had anything to do with the fire. Defendant did not know decedent was in the building.

There is no evidence whatsoever to support and theory that defendant was an insurer of decedent's safety.

Because of our conclusions on other issues decedent's status as an invitee, licensee or trespasser is unimportant. The fatal weakness in plaintiff's case is lack of proof of negligence and proximate cause.

II. Plaintiff's case is bottomed on the evidence that Davis was drunk and entered the bunkhouse with a lighted cigarette. Defendant had gone to bed about midnight. He did not know Davis was drunk. There is no evidence that Davis had been drunk before. There is no evidence that defendant knew or should have known that Davis might be drunk and while drunk disregard defendant's admonition against smoking. There is no showing of any act of negligence by defendant or neglect of any duty owed decedent.

Davis was off duty when he did his drinking. Whatever he may have done was not in connection with his employment. There is no doctrine of respondeat superior involved.

It is the general rule that to generate a jury question there must be substantial evidence. A mere scintilla is not enough. 88 C.J.S. Trial § 208. This has been the rule in...