Ganzhorn v. Reep
| Decision Date | 14 December 1943 |
| Docket Number | 46307. |
| Citation | 12 N.W.2d 154,234 Iowa 495 |
| Parties | GANZHORN v. REEP. |
| Court | Iowa Supreme Court |
Rehearing Denied Feb. 11, 1944.
Roy E. Havens, of Logan, for appellant.
Harold E. Hanson, of Logan, and J. J. Hess, of Council Bluffs, for appellee.
Plaintiff's petition as finally constituted asserted two counts. Count I alleged that plaintiff, at the time of his injury, was riding in an automobile, owned and operated by defendant, as a guest and not for hire while defendant was proceeding on a mission of his own, and that plaintiff was injured by reason of reckless operation of the automobile by defendant. Defendant's answer to this count admitted that, at the time of the collision, plaintiff was riding in defendant's automobile upon defendant's invitation as a guest and not for hire and while defendant was proceeding on a mission of his own. Defendant denied that he was reckless in the operation of the automobile.
Count II of the petition asserted that, at the time and place of the collision that plaintiff received his injuries, the relationship of master and servant existed between the plaintiff and defendant, plaintiff was engaged in doing work beneficial to defendant at defendant's request and was injured as a result of defendant's negligence. The answer to Count II of the petition denied that at the time and place of the collision, the relationship of master and servant existed between plaintiff and defendant, denied that plaintiff was then engaged at the request of defendant in doing work beneficial to defendant, denied that defendant was negligent.
Trial was had to a jury. The evidence that is material to the questions presented for our decision may be briefly summarized as follows. Plaintiff and defendant are farmers. Their homes are about three-fourths of a mile apart. Defendant called plaintiff on the telephone and asked plaintiff to help him find out what was wrong with a pump and fix it. Plaintiff drove over to defendant's farm about 1 p.m. The leather had become unscrewed from the bottom of the pump rod. They tried to pull it up but could not; called Mr. McCain, a well man from Logan, but still they couldn't pull it. McCain suggested that if they got a steel hoist they might get it up. Defendant started toward his car to go for a steel hoist. Plaintiff went over and sat on the running board of his own car. Plaintiff testified that defendant said to him, "Come and go with me and get it," that he (plaintiff) got in defendant's car and went with him. Defendant testified that he said to plaintiff, "You should go with me; couldn't do nothing here until I get back"; that plaintiff then got into the car and went along. On the road to Logan, defendant's car collided with another automobile head-on and plaintiff was severely injured. For the past two years plaintiff and defendant had exchanged work with each other. Defendant testified as follows:
At the close of the evidence defendant made four motions. First, was a motion to withdraw Count I from the consideration of the jury because the evidence was insufficient to warrant a verdict that the collision was caused by reckless operation of the automobile by defendant. Subject to the ruling of the court on the motion to withdraw Count I from the jury, the defendant moved for a directed verdict on Count I because of insufficiency of the evidence on the issue of reckless operation of the automobile. Defendant also moved the court to withdraw Count II from the consideration of the jury because the evidence was insufficient to warrant the jury finding that the relationship of master and servant existed between the parties at the time and place of plaintiff's injury. Subject to the ruling on the motion to withdraw Count II from the jury, the defendant made a motion for directed verdict as to Count II for the same reasons as stated in the motion to withdraw said Count II.
The court determined that, under the record, the evidence was insufficient to warrant a finding that plaintiff was a guest under the guest statute (Section 5037.10, Code 1939) and for that reason withdrew Count I of the petition from consideration of the jury. Defendant's other motions were overruled and the cause was submitted to the jury on Count II of the petition alone. The jury returned a verdict for the plaintiff for $3,000. Exceptions to instructions and motion for new trial were overruled. Defendant appeals asserting three assignments of error: (1) the overruling of the motion for directed verdict as to Count I of the petition; (2) the overruling of the motion for directed verdict as to Count II of the petition; (3) the overruling of exceptions to Instruction 3 which stated the basis on which plaintiff might recover.
I. In assigning error as to the overruling of the motion for directed verdict as to Count I of the petition, defendant contends that the trial court erred in finding that the evidence was insufficient to warrant a finding that plaintiff was a guest within the contemplation of Section 5037.10, Code 1939. We see no occasion to discuss or decide this question. Defendant challenged the right of plaintiff to have Count I submitted to the jury. The court's ruling gave defendant what he wanted. No matter what the ground stated by the trial court, the effect of the ruling was in defendant's favor. It was not prejudicial. An appeal cannot be based on a ruling in effect favorable to the appellant.
II. Defendant's challenge of the ruling on the motion to direct a verdict as to Count II raises the vital question in the case. To support his contention that the evidence is insufficient to sustain a finding that the relationship of master and servant existed, reliance is had upon Pace v Appanoose County, 184 Iowa 498, 168 N.W. 916; Meredith Pub Co. v. Iowa Emp. Sec. Comm., Iowa, 6 N.W.2d 6; Stiles v. Des Moines Council Boy Scouts of Am., 209 Iowa 1235, 229 N.W 841. The cases do not appear to be controlling. In the first two cases, this court found that the relationship of independent contractor existed.
In the Stiles case, we held that an eagle scout, who merely attended a scout camp, was not an employee. Plaintiff relies upon Porter v. Decker, 222 Iowa 1109, 270 N.W. 897. It will be referred to later.
We have made considerable search of the authorities and have not found a case squarely in point. On principle, however it would seem that a jury question was presented as to this issue. In the case of Napier v. Patterson, 198 Iowa 257, 260, 196 N.W. 73, 74, we stated, In the case of Lembke v. Fritz, 223 Iowa 261, 266, 272 N.W. 300, 303, we reviewed a number of our decisions and stated, "All the cases agree that the test of the relationship of master and servant is not the actual exercise of power of control over the details and methods to be followed in the performance of the work, but the test is the right to exercise such control." Applying such rules to the evidence herein the jury was warranted in...
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