Hansen v. Nelson

• Decision Date: 18 October 1949
• Docket Number: 47489.
• Citation: 39 N.W.2d 292,240 Iowa 1298
• Parties: HANSEN v. NELSON et al.
• Court: Iowa Supreme Court

39 N.W.2d 292

240 Iowa 1298

HANSEN v. NELSON et al.

No. 47489.

Supreme Court of Iowa

October 18, 1949

Jno. A. Senneff, of Mason City, for appellant Stalzer.

Uhlenhopp & Uhlenhopp, of Hampton, for appellee Carl M. Hansen, who is also appellant against Ernest Nelson.

Leming & Hobson, of Hampton, for appellee Nelson.

SMITH Justice.

On February 6, 1947, plaintiff's intestate, Henry C. Christensen immediately after or during a violent snow and wind storm was riding easterly in a car driven by defendant, Stalzer. In or at the westerly end of a deep cut in a snow drift the car collided with a Ford pick-up truck coming from the east and driven by defendant Nelson, causing personal injury to Christensen from which he subsequently died.

Defendant Stalzer and decedent Christensen were employees of the Armand Company farm, known as the Wilshire farm, in Franklin County. It was operated by Carl N. Hansen who, as administrator of decedent's estate, is plaintiff herein.

Each employee had his own car (Stalzer's actually belonged to his sister), used on occasion for farm business, such use being paid for by gasoline from the farm supply.

On the day in question many of the roads were blocked by a blizzard that had raged for some days (since January 29, according to plaintiff). On the morning of Feb. 6, plaintiff requested Stalzer to use his (sister's) car to take the block of Christensen's car to Belmond for repairs, so it, being a model A Ford and more suitable for use under existing conditions, could be made available for farm purposes. He also suggested picking up mail at Alexander as the payroll was in it. There was also some farm shopping to be done. Plaintiff sent decedent along to help shovel snow if they 'ran into difficulty.'

Action by plaintiff-administrator against both drivers resulted in verdict and judgment for plaintiff against defendant Stalzer from which the latter appeals, and in favor of Nelson, from which plaintiff appeals.

Defendant Stalzer assigns seven errors: 1. Decedent was a guest and verdict should have been directed against plaintiff on that theory; 2. Stalzer's amendment to answer, pleading assumption of risk at close of evidence, should have been permitted; 3. The court should have sustained this defendant's objections to evidence in two instances; 4. Requested instruction as to emergency confronting him should have been given; 5. Requested instruction on accident without negligence should have been given; 6. Requested instruction on assumption of risk should have been given (see No. 2, above); 7.

Requested instruction on unavoidable accident should have been given.

I. We cannot agree with defendant Stalzer's contention that the Record, as a matter of law, shows decedent was his guest on the fateful trip. Plaintiff argues the court should have decided, as a matter of law, that the guest relationship did not exist, but we need not go that far either. The court submitted the question to the jury by general instruction and special interrogatories. In so doing there was no error of which defendant Stalzer can complain.

Hansen operator of the farm where both Stalzer and decedent (Christensen) worked, testified that on occasion both the Christensen and Stalzer cars had been used for farm purposes. Whether this use of their cars was a part of their contract of employment seems unimportant. Certainly the making of trips to town for farm purposes was a part of their employment. The question of Stalzer's liability for Christensen's death does not depend on the ownership of the car he was driving but on his conduct as a driver and Christensen's status, as a passenger, whether guest or otherwise.

Undoubtedly there was evidence the trip was made at Hansen's direction, primarily for farm purposes. He testifies: 'I stated to Elmer (Stalzer) my car was laid up and that I had no transportation on the farm and that my car being one of the modern cars and no actual travel of the roads, they were not open, * * * better think about getting Henry's (Christensen's) car in shape so I will have some transportation. * * * Because it was a model A Ford, high wheel, get through snow where a modern car wouldn't get through. * * * I told Stalzer I was going to have he had Henry dismantle Henry's car so they could get the block to Belmond for repairs.'

That was February 3. The blizzard had been going on for nearly a week. Hansen says the two employees then spent a day and a half opening the road (approximately one mile eastward to the north and south road down to Latimer. The farm was about four miles north and one mile west of Latimer, and approximately four miles east and two miles north of Alexander. 'On the 5th * * * I arranged with Elmer (Stalzer) for his trip * * *. I said if the weather is clear in the morning and you think you can get through you go with your car * * * and go to Belmond (approximately 12 miles west of the farm) and take this block of Henry's in and also stop in Alexander (approximately four miles west of the farm) and get the farm mail because the farm payroll was in it. * * * Then I asked him to get some strainer pads for the farm, some supplies the farm needed. * * * I told him I would send Henry (decedent) along and some scoops so if they ran into difficulty could have some way of being shoveled out. Henry would shovel him out.'

Stalzer testifies (as plaintiff's witness): 'I recall taking the block out of Henry's car there at the farm and of Mr. Hansen telling me to take the block into town. * * * I recall we said something about picking the mail up but there was nothing definite said about it, because none of us knew whether that highway had been opened up to Alexander.'

As a matter of fact the morning of the trip the men (according to Stalzer's testimony) went, not west toward Alexander and Belmond but east to Chapin (about 8 miles from the farm) then south on Highway 65 five or six miles to Hampton, thence back west on No. 3, past Latimer, to the junction of No. 3 with No. 107, which latter road runs north from No. 3, about four miles to Alexander. Stalzer says 'the weather was quiet and clear at that time.' They picked up the mail at Alexander, went back south on No. 107 to No. 3, thence west to the junction of No. 3 with No. 69, thence north six or seven miles to Belmond.

At Belmond Stalzer got some gas while decedent 'put in his grocery order' and they took the block over to the garage. Stalzer picked up the 'strainer discs' and they went back over the route they came--south on No. 69, thence east on No. 3. The collision occurred on No. 3, somewhat west (about 80 rods) of its junction with No. 107.

It is argued on behalf of Stalzer that the main reason for going on to Belmond, after picking up the mail at Alexander, was to get decedent's car fixed and that no possible tangible benefit to Stalzer was involved. This much may be admitted without establishing decedent's guest status as a matter of law.

As to the benefit to Stalzer it is to be noted he made the trip, not primarily for direct benefit to himself, but upon direction of Hansen and in the performance of the duties of his employment. The same was true as to decedent. The benefit to him (because it was his car that was to be fixed at Belmond) was incidental. Hansen was having it done 'because it was a model A Ford, high wheel, get through the snow where a modern car wouldn't get through.' He told Stalzer 'better think about getting Henry's car in shape so I will have some transportation.'

Decedent went along, not because his car was the one to be fixed, but on Hansen's orders to shovel snow if necessary to get through. The jury could reasonably find, as it in fact did find, that both men were in the performance of service for their employer. Neither one invited the other.

Under these facts, in order to negative guest relationship, it was not necessary that Stalzer derive any special benefit. The opinion in Clendenning v. Simerman, 220 Iowa 739, 745-747, 263 N.W. 248, 251, cited in his behalf, quotes at length from Knutson v. Lurie, 217 Iowa 192, 195, 251 N.W. 147, 149, as furnishing 'the criterion for determining whether a passenger is a nongratuitous one, who may recover upon the showing of mere negligence,' that is, not a guest. The enumeration was sufficient in each of those cases to include plaintiff as such a 'non-guest' passenger.

But it does not of necessity follow that the enumeration was complete, and exclusive of every other possible relationship that might be in that class. These cases list three situations that do not come under the guest statute, viz., where the passenger is riding: 1. For the purpose of performing his duty as servant of the owner or operator of the car; 2. For the benefit of the owner or operator; or 3. For the mutual benefit of owner or operator and the passenger.

But how do these differ in principle from the situation which the jury could find here? The passenger and driver were both performing a duty for their common employer, each within the terms of his employment. Decedent was not technically performing a duty to the owner or operator of the car in which he rode but he was serving an employer for whose benefit the car was being operated--the virtual owner of the car for the time being. Had it really been a car of the Armand Company that was being used the case would fall squarely within the first and second situations above enumerated.

We think there was ample evidence to support the jury's finding that decedent was not a guest.

Other cases cited are not helpful to defendant Stalzer's contention. In fact we find no cited case more nearly in point than the Clendenning and Knutson cases above discussed.

II. An amendment to answer 'to conform to the proof' was offered...