Goodman v. Gonse, 48883

• Decision Date: 09 May 1956
• Docket Number: No. 48883,48883
• Citation: 76 N.W.2d 873,247 Iowa 1091
• Parties: Henry GOODMAN, Administrator, Appellant, v. Lyle GONSE, Appellee.
• Court: Iowa Supreme Court

Page 873

76 N.W.2d 873

247 Iowa 1091

Henry GOODMAN, Administrator, Appellant, v. Lyle GONSE, Appellee.

No. 48883.

Supreme Court of Iowa.

May 9, 1956.

Smedal, Maurer & Seiser, Ames, for appellant.

Robert E. Killmar and W. W. Reynoldson, Osceola, for appellee.

LARSON, Chief Justice.

On the morning of May 30, 1952, Lyle Gonse with his two nieces, his landlady, plaintiff's decedent Dorothy Ann Bowlin, 80, and her daughter Mrs. Poague, 59, left St. Joseph, Missouri, for plaintiff's home in Melbourne, Iowa. He was driving his 1942 Buick four-door sedan headed up U. S. Highway No. 69 about a mile south of Osceola, Iowa, when the accident occurred of which plaintiff complains and which allegedly caused the death of Mrs. Bowlin.

From the testimony these facts appear without serious dispute. The mishap occurred sometime before 11 A. M. The defendant was driving between 40 and 50 miles per hour. The pavement was dry and smooth. However, a stretch of pavement extending about 10 miles south of Osceola was being improved by the addition of approximately four inches of asphaltic cement commonly called 'blacktop.' On this date the blacktop had been completed across the entire width of the pavement from Osceola for about 3 miles, and from there on south it was in the process of being laid by layers, one half the width at a time. At the south entrance to this stretch there was a caution sign stating 'this road is kept open for your convenience', and flagmen were on duty in the vicinity of the machinery when work was in progress to keep traffic moving one way at a time. While the surface of the paving at the point of this accident was finished and no machinery was in that area, the shoulders had not been brought up to the level of the paving, so that there was a drop-off on the east side of some three to five inches.

From a point about a mile and two-tenths south of the Osceola city limits the highway begins a long, descending slope on which there is a flat left curve. (See plaintiff's Exhibit 9.) It then continues down hill toward the north for some three or four hundred feet. At the time defendant's car was rounding this curve in his right-hand lane it appears the right rear wheel of his vehicle slipped off the edge of the blacktop onto the dirt shoulder, and in his attempt to bring it back on the paving defendant lost control of the automobile. It angled on a slightly-curved line across the pavement about 125 feet into a bank on the opposite side of the highway, rolled over, and came to rest on the pavement upside down headed eastward. Decedent was thrown from the front seat and severely injured.

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Plaintiff produced testimony that shortly prior to the accident Mrs. Poague, riding in the back seat, had accused defendant of 'driving too fast', and that defendant had said: 'Shut your mouth, I don't like back seat drivers, you can get up here and drive.' No testimony appears as to any change of speed thereafter, nor is there any evidence as to the speed defendant was driving at the time of this conversation.

The trial court sustained defendant's objection to proffered testimony of Highway Patrolman Jones that he heard another of the passengers say to defendant after the accident: 'I told you you were driving too fast, why didn't you slow down', and that defendant replied: 'I know I was', for the reason that 'the information given * * * by the defendant in the presence and hearing of the patrol officer * * * is and was privileged under the statute * * *.'

At the close of plaintiff's case the trial court sustained defendant's motion to direct a verdict in his favor, upon the ground that plaintiff had failed to show by substantial evidence that the question of defendant's recklessness should be submitted to the jury. From judgment in favor of defendant plaintiff appeals, assigning as error the court's exclusion of the testimony of the patrolman and its action in sustaining defendant's motion for a directed verdict.

Plaintiff contends the facts and circumstances disclosed by the evidence show substantially that defendant was 'proceeding without heed of or concern for consequences', with 'no care', 'with utter indifference to the safety of his guests, and entire disregard of existing and apparent danger.' In this contention he points to the following: that the defendant suffered a physical impairment, having had his left arm amputated below the elbow some years previous; that the fact was obvious that the road was being improved or repaired with unfinished shoulders; that there were warning signs along the road to proceed with caution; that the highway at that place was a long hill and curve with only an 18-foot surface; that the defendant was driving between 40 and 50 miles per hour, which was excessive under the circumstances; that two of his guests had protested as to his speed; and that at the place where the right wheel of defendant's car had gone off the blacktop there was a drop of about four inches.

Defendant, on the other hand, contends it clearly appears that the 18-foot surface at this point was dry, clear and smooth; that vision was not impaired; and, while the curve was long and flat, it was shown to be somewhat deceiving to one coming from the south. A patrolman testified that over some period of time drivers had had a tendency to misjudge that flatness and override the pavement, which later made necessary the widening of the hard surface around the curve some 18 inches in order to stop traffic from chipping off the blacktop cement on the paving proper. Defendant contends that this was a condition not readily apparent to one approaching from the south; that it was not shown that 40 or 50 miles per hour was too fast for that curve; that there were no marks observed or testimony given that defendant's automobile had swerved or skidded even slightly prior to that time; and that there was no evidence of loss of control of the vehicle prior to defendant's effort to get it back on the resurfaced highway, nor that this pavement presented any unusual negotiating hazards known or apparent to the defendant.

For the purpose of this discussion we shall include as acceptable the proffered testimony of Patrolman Jones.

I. There is no dispute that plaintiff's claim is bottomed on section 321.494 of the 1954 Code of Iowa, I.C.A., commonly known as the 'guest statute.' This statute and its interpretation have been before this court many times and, while the general rule has been clearly stated, the application thereof has been sometimes difficult. We said in Schneider v. Parish, 242 Iowa 1147, 49 N.W.2d 535, that it is cold comfort for a lawyer or a trial judge who finds himself involved with this statute, to be told that each case must depend upon a proper interpretation of the law as applied to the particular facts before him, but certainly no hard and fast rule which will apply to all situations can be devised. However, this court has never departed from the definition of 'reckless operation' set forth in Siesseger v. Puth, 213 Iowa 164, 182, 239 N.W. 46, 54, and it has been the starting point of practically every later attempt to put into words the meaning of that statute. Goetsch v. Matheson, Iowa, 68 N.W.2d 77; Nesci v. Willey, Iowa, 75 N.W.2d 257.

In Olson v. Hodges, 236 Iowa 612, 622, 19 N.W.2d 676, 682, we reviewed previous applications by the court and, in an attempt to further clarify the law, quoted from Shenkle v. Mains, 216 Iowa 1324, 1328, 247 N.W. 635, 636, as follows:

"The statute calls imperatively upon us to recognize a substantial distinction between negligence and reckless operation. * * * Having laid down in the Siesseger case * * * the line of demarcation to the best of our ability, our remaining duty for the future is to apply the rule without vacillation to the concrete facts of the particular case. * * * The two grounds upon which recovery may be predicated * * * are exceptional and not general. The general rule is that a guest cannot recover. The exceptional grounds are: (1) 'intoxication' of the driver, (2) 'reckless operation' by the driver. * * * If the application of the exceptions becomes more frequent than that of the general rule, it may well be deemed a warning sign that we are misapplying the exceptions."

We are unable to say it better at this time.

II. Recklessness is an inference of fact to be drawn from the evidence offered and is a matter for the determination of a jury if the facts disclosed can reasonably be said to support such an inference. However, facts disclosed which can support a finding of recklessness only through speculation and conjecture must not be submitted for jury determination. It is the court's duty to first pass upon the question as to whether or not the facts disclosed by the evidence, plus the reasonable inferences that could be drawn therefrom, would support such a finding of recklessness. Mescher v. Brogan, 223 Iowa 573, 272 N.W. 645. The evidence must disclose something from which recklessness could be legitimately inferred. Wilde v. Griffel, 214 Iowa 1177, 243 N.W. 159; Wright v. What Cheer Clay Prod. Co., 221 Iowa 1292, 267 N.W. 92. It is the general rule in this state that in matters of proof, a litigant is not justified in inferring a fact as proven from mere possibility of existence of facts. Phillips v. Briggs, 215 Iowa 461, 465, 245 N.W. 720.

The plaintiff is, of course, entitled to have the benefit of all favorable inferences which reasonably may be drawn from the evidence. Russell v. Turner, D.C., 56 F.Supp. 455; Hebert v. Allen, 241 Iowa 684, 41 N.W.2d 240; Baker v. Langan, 165 Iowa 346, 359, 145 N.W. 513, 518; Thompson v. Cudahy Packing Co., 171 Iowa 579, 581, 151 N.W. 470, 471; Comfort v. Continental Casualty Co., 239 Iowa 1206, 1208, 34 N.W.2d 588, 589. However, against that rule thus variously stated, we must balance the fact that the burden is on the plaintiff...