Frame v. Olmsted

• Decision Date: 14 March 1922
• Docket Number: 34378
• Citation: 187 N.W. 18,193 Iowa 412
• Parties: ELLA MAE FRAME, Appellant, v. C. C. OLMSTED et al., Appellees
• Court: Iowa Supreme Court

187 N.W. 18

193 Iowa 412

ELLA MAE FRAME, Appellant, v. C. C. OLMSTED et al., Appellees

No. 34378

Supreme Court of Iowa, Des Moines

March 14, 1922

Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.

APPELLANT brought this action against C. C. Olmsted and Earl Olmsted to recover damages for injuries sustained by her in an automobile accident. C. C. Olmsted is the father of Earl Olmsted, and owner of the car in question. Earl Olmsted was driving the car at the time of the accident. Appellant was sitting on a bench, located on the parking between the sidewalk and the curb, near the southeast corner of Sixth and Corning Avenues, Des Moines, Iowa. Earl Olmsted, a minor of 19 years, drove the car from the north on Sixth Avenue at excessive speed, and struck appellant, injuring her severely. At the close of all the evidence, on motion of C. C. Olmsted appellee, the court directed a verdict in favor of said C. C Olmsted. The case was submitted to the jury as to defendant Earl Olmsted. Plaintiff appeals from the order and judgment thereon directing verdict in favor of C. C. Olmsted.

Affirmed.

Chester J. Eller, for appellant.

Parsons & Mills, for appellees.

ARTHUR, J. STEVENS, C. J., EVANS and FAVILLE, JJ., concur.

OPINION

ARTHUR, J.

The question presented is whether it was error to direct a verdict in favor of C. C. Olmsted. The issue of evidence was made as follows: It appeared without dispute that C. C. Olmsted was the owner of the car; that defendant Earl Olmsted was his son, 19 years of age; that defendant Earl Olmsted, at the time of the accident in question, was driving his father's car, which was a 1914 Model National touring car; that the accident and consequent injury to appellant occurred substantially as alleged by appellant,--that is, that, while appellant was sitting on a bench within the curb line, Earl Olmsted drove the car with great speed, striking appellant, resulting in the injuries complained of. For the purpose of this appeal, it is not necessary to discuss the question of the negligence of Earl Olmsted as the proximate cause of the injury to appellant. The record shows that the jury found in favor of the plaintiff and against the defendant Earl Olmsted, and judgment was entered on the verdict against Earl Olmsted. No appeal is here taken from that judgment. Only an appeal from the verdict directed in favor of C. C. Olmsted is presented.

The accident occurred on Saturday evening, June 19, 1920, between 8 and 9 o'clock.

Paul Labowitz, called by plaintiff, testified:

"Mr. C. C. Olmsted lives across the street from where I live, 953 Twenty-fourth Street, and Earl Olmsted is his son. C. C. Olmsted owned a National touring car, which they used in and about their premises. I have observed Earl Olmsted driving and operating this car. I have seen him drive and operate the car with his father. I saw him drive the car once or twice before his folks went to California."

Jack Olds, called by plaintiff, testified:

"I live at 958 Twenty-fourth Street, next door to C. C. Olmsted. I never saw Earl Olmsted leave the house with the car without the folks."

W. H. Frame, called by plaintiff, testified that he is the husband of Ella Frame, appellant; that, during the middle of the week following the accident, he had a conversation at the Savery Hotel with Earl Olmsted. Frame was asked by appellant's counsel:

"Q. What was said at that time by Earl Olmsted?"

Subject to apt objection on the part of C. C. Olmsted, and the objection sustained as to C. C. Olmsted, witness answered:

"Earl Olmsted said he had driven a car for five years, 'not only our car, but other cars;' and that his father never objected to his using the car, and never refused him the right of the car; and he used the car quite frequently."

C. C. Olmsted testified in his own behalf:

"I live at 954 Twenty-fourth Street. Earl Olmsted is my son. I am the owner of a car known as the National touring car, 1914 Model. I used the machine generally. Occasionally took the family riding. I made a trip this summer to Portland, Oregon. Left on the evening of June 16th, and returned July 24th. The automobile was left in the garage, and I went and purchased a new lock and hasp and put on same, and locked it up, and put the key in my pocket. I instructed my son Earl that the car could not be used while I was gone. Told him that a number of times. I used the car that day [June 16th] to go out and get some of my tools, and ran it back and put the car in and pulled the key on it and put a new hasp on it and slipped the key on my key ring, and I supposed everything was safe. My son, Earl, did not have any permission to use the car. My son drove it when me or his mother was with him, and going to and from on orders to get certain stuff. I gave him orders from time to time. The car was generally used for the benefit of the family. When I left for Portland, one casing was down, no lights on it, and it was all out of repair. The members of my family only went riding with me when we went out for material. Earl Olmsted is 19 years of age last December. I locked this car in that garage before I left. The boy willfully and deliberately broke open the garage."

At the close of all the testimony, defendant C. C. Olmsted moved the court to instruct the jury to return a verdict for him, for the reasons:

(1) That the evidence fails to sustain a...