Hartman v. Norman

• Citation: 253 Iowa 694,112 N.W.2d 374
• Decision Date: 12 December 1961
• Docket Number: No. 50477,50477
• Parties: James HARTMAN, Appellee, v. L. R. NORMAN and Bill Norman, a partnership doing business as the Norman Motor Company, and Charles Coy, Appellants.
• Court: United States State Supreme Court of Iowa

Page 374

112 N.W.2d 374

253 Iowa 694

James HARTMAN, Appellee, v. L. R. NORMAN and Bill Norman, a partnership doing business as the Norman Motor Company, and Charles Coy, Appellants.

No. 50477.

Supreme Court of Iowa.

Dec. 12, 1961.

Rehearing Denied March 5, 1962.

Cory & Sackett, Spencer, for appellants.

Fitzgibbons & Fitzgibbons, Estherville, for appellee.

SNELL, Justice.

This is an action for damages following a collision of an automobile owned and operated by plaintiff, James Hartman, with an automobile operated by defendant, Charles Coy. The automobile driven by Coy was of record in the name of Norman Motor Company at the time of the accident. The collision occurred in 1957. Trial of this case was stayed while plaintiff was in military service. Plaintiff sued Coy as driver and defendants Norman as owners of the car allegedly driven with their knowledge and consent.

Norman Motor Company is a partnership. For brevity, the partnership and the partners will be referred to as Norman Motors or defendants Norman. Defendant Coy made no defense other than to plead a discharge in bankruptcy. At the trial plaintiff's claims that negligence of defendant Coy was the proximate cause of the collision and that plaintiff was free from contributory negligence were not controverted.

Norman Motors urged as a defense that prior to the collision it had made a bona fide sale and delivery of possession of the car to defendant Coy and was not liable as owner for Coy's negligence. Motions by defendants Norman for a directed verdict made at the close of plaintiff's evidence and at the close of the evidence were overruled. The trial court submitted to the jury the question of whether or not a bona fide sale and delivery of possession had been made as contended, and if liability existed, the amount of plaintiff's damage.

The jury returned a verdict for plaintiff in the sum of $4500. Motions for judgment notwithstanding the verdict and for a new trial were overruled. Norman Motor Company, the partnership and the individual partners appeal.

Appellants urge three grounds for reversal: (1) that the trial court erred in submitting to the jury the question of whether or not a bona fide sale and delivery of possession had been made; (2) that the verdict and judgment of $4500 was excessive and the result of passion and prejudice on the part of the jury; (3) that the court erred in refusing to reopen the trial for the introduction of evidence omitted by oversight and mistake, or newly discovered.

The record before us was settled by stipulation and order of the trial court. We quote from the record: 'That no exceptions, or objections to the Instructions were made by either party to the Appeal. Further, neither party to this Appeal made a request for any instructions that were refused. That before the instructions were submitted both parties hereto consented and agreed to the instructions that were submitted.' Appellee contends that appellants consented to submission of instructions to the jury regarding ownership and bona fide sale and may not now challenge the sufficiency of the evidence to warrant such submission.

I. As appellee challenges appellants' right to be heard on a material issue, we will consider it first. Appellee's contention is not in accord with our rules or decisions. Rule 331(b), Rules of Civil Procedure, 58 I.C.A., provides that no error in an interlocutory ruling or decision is waived by pleading over or proceeding to trial. On appeal there may be assigned as error such interlocutory ruling or decision where such ruling is shown to have substantially affected the rights of the complaining party.

In Heavilin v. Wendell, 214 Iowa 844, 241 N.W. 654, 658, 83 A.L.R. 872, the defendant moved for a directed verdict. The motion was overruled. Thereafter defendant asked for instructions under the law thus fixed by the court's ruling. It was held that by asking such instruction defendant did not waive the error of the court in the ruling previously made on the motion to direct.

After reviewing the authorities, Albert, J., speaking for the court said: '* * * we now fix the ruling to be that, where a party makes a motion for a directed verdict and the court overrules the same, the person against whom such ruling is made does not waive the error, if there is one, in the court's ruling on a motion to direct a verdict by asking instructions which correctly state the law of the case as fixed by the court's ruling on the motion to direct a verdict. * * *' Cases to the contrary were specifically overruled. This case, decided in 1932, was prior to the adoption of Rule 331(b) mentioned above, but the principle stated therein has not been changed. In the cited case the defendant, after the court's ruling on the motion to direct, asked for instructions under the law thus fixed by the court's ruling. (Emphasis supplied.) In the case at bar, the court's ruling held that there was a question of fact for the jury. As said in the Heavilin case, supra, it was defendant's duty to bow to that ruling and proceed. The correctness of the court's instructions to the jury have not been challenged, but we have examined them to determine if defendants actually waived any error. If there was a question for the jury as determined by the court's ruling, the instructions were correct. By agreeing thereto defendants did nothing except agree that they correctly stated the law. Defendants did not agree that there was a case for the jury.

The Heavilin case, supra, is cited with approval and followed in Kinney v. Larsen, 239 Iowa 494, 31 N.W.2d 635. This case also refers to the spirit and effect of Rule 331(b). See also Plumb v. Minneapolis & St. L. Ry. Co., 249 Iowa 1187, 1195, 91 N.W.2d 380. Defendants' consent to the instructions did not waive the right to challenge the rulings on the motions to direct.

II. At all times material herein defendant, Norman Motors, was a licensed motor vehicle dealer operating a sales agency and garage. Richard (Dick) Chaplin was employed as a salesman. Sometime before noon on October 8, 1957, defendant Coy appeared at the garage and told salesman Chaplin that he wanted to buy an automobile and how much he wanted to pay. Chaplin showed and demonstrated some cars, including a 1949 Ford involved in this case. In addition to the demonstration, Coy checked with the former owner as to the condition of the car. Sale price and terms of payment were discussed and agreed to. The sale price was $175. Down payment of $70 was made by trading in some used tires and the remainder was to be paid in three installments during the ensuing six weeks. To reduce the agreement to writing, Coy and Chaplin went to the garage office. A retail buyer's order on a printed form used by Norman Motors was, except for the motor number, made out and signed by Coy and by Chaplin for Norman Motors. By this written agreement, Coy agreed to purchase the car in question. It was provided that 'delivery of this purchase is to be made 10-8, 1957, or as soon thereafter as possible.' This agreement was completed during the noon hour. The partners owning the business were not in the office. The Iowa Dealer Purchase Receipt showing the transfer to Norman Motors from the former owner and the Certificate of Title were in the safe. Chaplin did not have access thereto. This was explained by Chaplin to Coy. Chaplin asked Coy to return later to get the title certificate, registration receipt and necessary assignments. Coy said he would do so. Coy received a copy of the buyer's order complete, except for motor number and notations made later by Bill Norman, delivered the tires traded in, took possession of the car and drove away. He did not return for the title certificate and never did anything to change the registration of the car to himself. He retained the use and possession of the car. When Bill Norman, one of the partners, returned from lunch, he wrote 'Accepted' on the order, wrote in the motor number, took the title certificate from the safe, caused to be executed the Reassignment by Iowa Licensed Dealer and executed the notice of Assignment of Certificate of Title. Bill Norman then gave these documents to Chaplin for delivery to Coy. Chaplin put them in his pocket where they remained until after the collision between Coy and plaintiff.

The installment payments to be made by Coy were carried on open account. No finance papers or conditional sale contracts were contemplated or executed. On October 15, 1957, seven days after delivery of possession of the car and seven days before the first cash payment was due, Coy was involved in the collision with plaintiff that resulted in this law suit.

When the defendants Norman learned after the accident that record title to the car had not been changed to Coy they became concerned. They had also been delinquent by a few days in recording the transfer from the former owner to them. In conversations with the County Treasurer, they inquired as to what could be done and available procedure. They were obviously proceeding from fear but there is nothing in the record to indicate that defendants Norman actually attempted any alteration of the public records. Nothing happened as a result of these conversations. Plaintiff infers from the record title and the concern of defendants Norman relative thereto that Norman Motors was actually the owner of the car and considered themselves the owner within the meaning of the Owners' Responsibility Statute. We do not agree.

The day after the collision plaintiff's father visited defendant in the hospital where he was a patient. He testified, 'I asked Coy who owned the automobile he was driving and he said he hadn't signed any papers on the car and that he was trying it out. He said he got the car from the Norman Motor Company of Spirit Lake.' This evidence was of no value in the face of the written buyer's order that he admitted signing and his subsequent testimony.

On November 15,...