Gibbs v. Wilmeth

• Decision Date: 05 March 1968
• Docket Number: No. 52582,52582
• Citation: 261 Iowa 1015,157 N.W.2d 93
• Parties: Darlene Lucille GIBBS, Loy Gibbs, and Pamela Gibbs, by her father and next friend, Loy Gibbs, Appellants, v. Carol J. WILMETH and Hartford Accident & Indemnity Company, Appellees.
• Court: Iowa Supreme Court

Page 93

157 N.W.2d 93

261 Iowa 1015

Darlene Lucille GIBBS, Loy Gibbs, and Pamela Gibbs, by her father and next friend, Loy Gibbs, Appellants, v. Carol J. WILMETH and Hartford Accident & Indemnity Company, Appellees.

No. 52582.

Supreme Court of Iowa.

March 5, 1968.

Shuttleworth & Ingersoll, Cedar Rapids, for appellants.

Silliman, Gray & Stapleton, Cedar Rapids, for appellees.

LeGRAND, Justice.

On Christmas Day of 1962 this unfortunate head-on collision resulted in one death and personal injury to all other occupants of both cars. Three personal injury claims are involved in this appeal from judgment for defendants, following a jury trial and verdict in their favor.

Plaintiffs Loy Gibbs and Darlene Lucille Gibbs are husband and wife. The other plaintiff, Pamela Gibbs, is their daughter who was then three years old. Loy Gibbs was the owner and driver of one of the vehicles in this accident. Since their interests on this appeal are identical, all references here to Loy Gibbs apply equally to all three plaintiffs.

Carol J. Wilmeth was the driver of the other car, which was owned by Hartford Accident & Indemnity Company, by whom her husband, Oren J. Wilmeth, was employed. For convenience Carol J. Wilmeth is referred to herein as defendant and Hartford Accident & Indemnity Company as Hartford.

The accident occurred on U.S. Highway #6 about 15 miles west of Marengo, Iowa. Plaintiff was proceeding west and defendant east. A Christmas Eve snow had left the highway in an uncertain state. Portions were dry and clear; others were snow-packed and icy. Both drivers were admittedly aware of this. When the Hartford car was so close to plaintiffs that evasive action was impossible, it suddenly and without warning spun across the center line directly into plaintiffs' path. The result has already been mentioned. Further testimony will be referred to in our later discussion.

Plaintiff claims he is entitled to a new trial on each of six grounds. They are: (1) that the court erred in submitting to the jury defendant's affirmative defense of legal excuse; (2) that instruction nine on legal excuse was erroneous as applied to the facts of this case; (3) that the court erred in admitting the testimony of Reverend Burton C. Collier as part of the res gestae; (4) that the court erred in failing to submit to the jury the question of separate liability on the part of Hartford Accident & Indemnity Company; (5) that the court erred in permitting the jury to deliberate continuously for 20 hours and in giving a coercive verdict-urging instruction; (6) that the court erred in giving a verdict-urging instruction without notice to counsel and in the absence of counsel.

I. We discuss assignments one and two together. Plaintiff claims, first, legal excuse should have been withdrawn from the jury because the evidence shows any emergency which existed arose out of the defendant's negligence and therefore she is not entitled to rely on that doctrine; and, second, even if proper to submit the issue, the instruction by which the trial court did so was fatally defective and requires a new trial. The factual situation which will determine the answer to this problem is as follows: Defendant and her husband, Oren J. Wilmeth, who was fatally injured in this accident, had left Des Moines bound for their home in Milwaukee. They traveled Interstate 80 out of Des Moines and when they reached Grinnell, where the interstate then ended, they took U.S. Highway 6 in an easterly direction. Here, too, they switched drivers, defendant taking over the operation of the car from her husband, who had driven from Des Moines to Grinnell.

All witnesses, including defendant, agree that the road was sometimes clear, sometimes snow-packed and icy. Although it was cold, a bright sun had melted the snow and ice in the well-traveled areas but in sheltered spots the witnesses variously described conditions as 'slick', 'icy', and 'very slippery.' Defendant was driving between 55 and 60 miles an hour, which was under the posted speed limit. She testified she had no trouble maneuvering the car or keeping it under control. This testimony was substantiated by other witnesses, some for plaintiff and some for defendant, who stated they saw nothing untoward about the movement of defendant's car until immediately before the accident, and who stated also they had no difficulty in controlling their own cars, which were traveling at approximately the same speed.

At approximately 200 to 300 feet before the point of impact the road was snow-packed and icy over its entire surface. Here, too, defendant entered a slight right curve on a gradual downgrade. Defendant reduced the speed of her car but does not know to what extent. She testified at this time she had no trouble with the control of her car. At one time defendant testified the control did not change at any time for 500 feet prior to the impact; at another time she stated that her car 'gave' or 'swayed a little' but she steadfastly denied this movement was a skid of any kind. During these few critical moments before the accident defendant's husband was asleep. Apparently he was awakened suddenly by the slight movement of the car just mentioned. Defendant testified he grabbed the steering wheel from her and caused the car to spin out of control across the center line directly into the path of plaintiff. This, and only this, she says caused the car to veer over onto the other side of the road where it is conceded the impact occurred. Defendant insists that before her husband grabbed the steering wheel from her she was at all times in complete control of the operation and movement of the Hartford car.

Legal excuse is a doctrine by which one seeks to avoid the consequences of his own conduct by showing justification for acts which would otherwise be considered negligent. This doctrine has been before us many times and has been defined to mean: (1) anything that would make it impossible to comply with the statute or ordinance; (2) anything over which the driver has no control which places his car in a position contrary to the provisions of the statute or ordinance; (3) where the driver of the car is confronted by an emergency not of his own making, and by reason thereof he fails to obey the statute; (4) where a statute specifically provides an excuse or exception.

It is, of course, we settled that one whose own negligence has caused or contributed to a situation which makes it impossible for him to obey the law may not rely upon such conduct as a basis for invoking the doctrine. Kisling v. Thierman, 214 Iowa 911, 916, 243 N.W. 552; Wachter v. McCuen, 250 Iowa 820, 827, 96 N.W.2d 597, 600; Winter v. Moore, 255 Iowa 1, 4, 121 N.W.2d 82, 83, and citations; Mass v. Mesic, 256 Iowa 252, 255, 127 N.W.2d 99, 101; 7 Am.Jur.2d, Automobiles and Highway Traffic, section 359--360, page 905. Whether one has established a legal excuse is usually, but not invariably, a jury question. In considering this matter the evidence is to be viewed in the light most favorable to the one asserting the existence of legal excuse. Winter v. Moore, supra; Mass v. Mesic, supra, and citations.

We are convinced the issue was properly submitted under the circumstances existing here. Plaintiff's argument to the contrary entirely disregards the requirement that we view the evidence in the light most favorable to defendant. We agree there is ample evidence from which the jury might have found defendant's own negligence triggered the crisis and the act of defendant's husband in grabbing the steering wheel was a last desperate attempt to bring the car back on its own side of the road, but there is also evidence from which the jury might have found defendant had control of her car until her husband awoke and inexplicably grabbed the steering wheel from her, causing the car to spin out of control.

We are not unmindful of the fact that defendant's testimony is in some vital respects inconsistent with and contradicted by her pre-trial deposition, which was introduced into evidence. However, it is the jury's duty, not ours, to put credibility where it belongs. Under the facts existing here we find it was proper to permit the jury to determine if defendant had carried her burden of proving legal excuse.

We now consider instruction nine under which this issue was submitted to the jury. It provides:

'The defendants claim that if it is found that Carol J. Wilmeth violated a statute in the operation of the Hartford Accident & Idemnity Company owned vehicle, that she had a legal excuse for doing so, in that Oren Wilmeth had grabbed the steering wheel and changed the course of said vehicle, and that she was therefore not negligent. You are instructed that the burden of proof is upon the defendants to establish such legal excuse by a preponderance of the evidence.

By the term 'legal excuse' as applied to this case, is meant:

1. Anything that would make it impossible to comply with the statute.

2. Anything over which the driver has no control which places his car in a position contrary to the provisions of the statute.

3. When a driver is confronted by an emergency not of his own making, and by reason thereof fails to obey the statute.

If you find that defendant Carol J. Wilmeth has violated a statute as submitted to you in other instructions, and that she has established the grabbing of the steering wheel and changing of course by Oren Wilmeth as a legal excuse for such violation, under the above definition, then you should find the defendant Carol J. Wilmeth not negligent in violating the particular statute involved.'

Plaintiff claims this instruction is fatally defective because it permitted the jury to find defendant had established legal excuse if she proved her husband grabbed the steering wheel from her, even if the jury also found her negligence caused him to do so, and because it failed to advise the jury as to defendant's speed and the condition of the...