Heavilin v. Wendell

• Decision Date: 15 March 1932
• Docket Number: 41232
• Citation: 241 N.W. 654,214 Iowa 844
• Parties: JOHN W. HEAVILIN, Appellee, v. PAUL H. WENDELL, Appellant
• Court: Iowa Supreme Court

241 N.W. 654

214 Iowa 844

JOHN W. HEAVILIN, Appellee, v. PAUL H. WENDELL, Appellant

No. 41232

Supreme Court of Iowa, Des Moines

March 15, 1932

REHEARING DENIED JUNE 24, 1932.

Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.

Suit for personal injuries resulting from an automobile accident. From a judgment in favor of the plaintiff for $ 1200 rendered on the verdict of a jury, the defendant appeals.

Reversed.

Cosson & Newcomb, for appellant.

Paul W Walters and Howard L. Bump, for appellee.

ALBERT J. WAGNER, C. J., and STEVENS, FAVILLE, and DE GRAFF, JJ., concur.

OPINION

ALBERT, J.

On the 5th day of May, 1930, defendant, Paul Wendell, was the owner of an Essex coach. He and one Julius Ersland lived in different apartments in the same apartment building in the city of Des Moines, and on the morning of the above day, Ersland borrowed defendant's automobile under the understanding and agreement that it was to be used for the purpose of going to a near-by drug store to procure medicine for Mrs. Ersland, who was ill. Instead of using the car as specified, however, Ersland proceeded to take a "joy ride" around the city of Des Moines and vicinity. About noon he picked up a young lady, and shortly thereafter, at East First Street and Grand Avenue, he had a collision with a Nash sedan owned and operated by Robert Stiles of St. Louis, Missouri. John W. Heavilin, the plaintiff, was riding in the latter car when the collision occurred, causing injuries of which he complains.

But one error is relied upon for reversal. The evidence in the case shows, without dispute and without impeaching or weakening surrounding circumstances, that Ersland borrowed this car from the defendant on the representation that his wife was ill and he wished to go to a drug store to procure medicine for her and would return the car promptly, and these were the conditions under which the car was loaned by Wendell to Ersland.

At the close of all of the testimony, the defendant made a motion to direct a verdict on the ground, in substance, that when the accident occurred, Ersland was not driving the car with the consent of the owner; hence Section 5026, Code, 1927, had no application to the facts in the case. This being true, plaintiff had not made out a case for the jury.

This contention was recognized by the court, and the same was submitted to the jury by instruction. The defendant insists that no such question should have been passed to the jury, but that the court should have held, as a matter of law, that the plaintiff had failed to make a case. This is the question before us for decision.

Section 5026 reads as follows:

"In all cases where damage is done by any car driven by any person under fifteen years of age and in all cases where damage is done by the car, driven by consent of the owner, by reason of negligence of the driver, the owner of the car shall be liable for such damage."

The question of operation of an automobile by another on the theory of agency, of master and servant, or employer and employee, has been passed upon by us in cases to be later reviewed. There has also developed in our cases what is known as the "family car" doctrine, as shown by the following cases: Dircks v. Tonne, 183 Iowa 403, 167 N.W. 103; Collinson v. Cutter, 186 Iowa 276, 170 N.W. 420; Landry v. Oversen, 187 Iowa 284, 174 N.W. 255; Baldwin v. Parsons, 193 Iowa 75, 186 N.W. 665.

Another doctrine has also been announced by this court in what are known as cases of "joint or common enterprise," as illustrated by Daggy v. Miller, 180 Iowa 1146, 162 N.W. 854.

Until the adoption of what is now Section 5026 of the Code, to wit, Chapter 275, Acts of the 38 G. A., passed by the legislature in 1919, there was no specific provision in the Code governing such a set of circumstances. A part of Section 12 of the aforesaid Act reads as follows:

"And in all cases where damage is done by the car, driven by consent of the owner, by reason of negligence of the driver, the owner of the car shall be liable for such damage." (Now Section 5026 of the Code.)

Until the passage of this Act, this court consistently held that where a car was being driven by a person other than the owner, without the consent of the owner, the owner was not liable for damages growing out of the negligence of such driver, and this was our holding in cases to be discussed later herein.

The question at this point is whether or not the enactment of this section by the legislature changed the rule theretofore announced by our opinions.

The first time this new statute came before this court, so far as we are able to find, is in the case of Rowland v. Spalti, 196 Iowa 208, 194 N.W. 90. In that case we said:

"It is true that, in the instant case, the defendant did consent that Leo should drive the car to Knoxville; and, had the collision occurred while he was making that trip, so authorized, it may be assumed that the father would have been liable for the son's negligence; but it surely may not be said that the consent given for the Knoxville trip operated to expose the parent to liability for the wrongful act of the son in departing from or exceeding the authority so given him."

In the case of Curry v. Bickley, 196 Iowa 827, 195 N.W. 617, we said:

"But, in any event, the inference that a car is being operated at a given time by the owner, or with his consent, does not require that every case shall go to the jury where the undisputed and uncontroverted evidence establishes the facts so conclusively that the inference is overcome."

In Maine v. Maine & Sons Co., 198 Iowa 1278, 201 N.W. 20, l. c. 1282, we said:

"* * * so it has been held, under the statute, that, where the owner has consented to a particular use of his car, the negligence of the driver, while using the car for some purpose of his own, and beyond or outside the terms of the consent given, will not render the owner liable."

In Seleine v. Wisner, 200 Iowa 1389, 206 N.W. 130, we said:

"We have also held that an allegation of ownership carries with it an inference of law; to wit, that the car was operated by the owner, or, if by someone else, that it was with the owner's consent. This is a mere inference, and is recognized as a weak one, but sufficient to compel the owner to identify those operating the vehicle and explain by what authority, if not his own, the car was operated."

In the case of Tigue Sales Co. v. Reliance Motor Co., 207 Iowa 567, 573, 221 N.W. 514, there was a total absence of evidence on the part of the defendant as to how the party came to be driving the owner's car. We there said:

"The question of ownership and consent, under the facts in the instant case, was clearly for the jury to determine. Had there been any evidence that the consent or permission given Swearingen (the driver of the car) was in any way limited, the cases relied upon by appellant might find application."

In Landry v. Oversen, 187 Iowa 284, at 286, 174 N.W. 255, we said:

"The proof of ownership of the automobile at the time of the collision merely makes out, prima facie, that the automobile was being operated for the owner, and to avoid a finding to this effect, there must be some showing to the contrary. The strength of the prima facie showing necessarily depends on the circumstances of each particular case."

We also laid down the rule in this case that the burden of proof is on the party asserting the fact that the car was driven with the owner's consent, and does not change.

It is apparent from these holdings that we have consistently held that where the owner loans a car to another, for a specific purpose, and the party uses it for some other or different purpose, the owner is not liable for the negligence of the driver of the car while he is using it for such other or different purpose. Plaintiff having alleged that the car was driven with the consent of the owner, as said in the Landry case, supra, he has the burden of proving or establishing this fact, and there is no burden on the defendant. Proof of ownership raises an inference of consent, as said in Seleine v. Wisner, 200 Iowa 1389, 206 N.W. 130. He may negative this inference by proof that there was no such consent, and in the case at bar, both the driver and the owner of the car testified that the consent to drive the car was limited to that of going from the residence to the drugstore to get medicine for the wife of Ersland, and this testimony is uncontradicted by any facts or circumstances proven in the case which would tend to cast doubt or uncertainty on the testimony of the owner and the driver of the car. At this point, therefore, it must be held, as a matter of law, that the evidence in this case conclusively overcomes said inference, and the plaintiff failed to carry the burden of proving that the car was being driven with the consent of the owner. Such is the effect of our holdings in Reynolds v. Buck, 127 Iowa 601, 103 N.W. 946; Sultzbach v. Smith, 174 Iowa 704, 156 N.W. 673; Hall v. Young, 189 Iowa 236, 237, 177 N.W. 694; and Baldwin v. Parsons, 193 Iowa 75, 186 N.W. 665. The first three of these cases were decided on accidents which occurred before this statute was adopted; the Baldwin case and the other cases cited in the prior part of this opinion after and under the statute.

The appellee relies on the case of Wolfson v. Jewett Lumber Co., 210 Iowa 244, 227 N.W. 608, and Lange v. Bedell, 203 Iowa 1194, 212 N.W. 354. In each of these cases there was proof of facts and surrounding circumstances which would tend to negative the testimony of the owner and the driver of the car, and we rightfully held, under such circumstances, that the question was for the jury.

We think, after having thus reviewed the law and the facts in ...