Horst v. Holtzen

• Decision Date: 06 May 1958
• Docket Number: No. 49419,49419
• Parties: Susan HORST, a Minor, by A. W. Horst, her father, Plaintiff-Appellant, v. Mabel HOLTZEN, Defendant-Appellee.
• Court: Iowa Supreme Court

Page 41

90 N.W.2d 41

249 Iowa 958

Susan HORST, a Minor, by A. W. Horst, her father, Plaintiff-Appellant, v. Mabel HOLTZEN, Defendant-Appellee.

No. 49419.

Supreme Court of Iowa.

May 6, 1958.

V. O. De Witt, of Pizey, Sears & De Witt, Sioux City, for appellant.

John W. Gleysteen and Duncan M. Harper, of Harper, Gleysteen & Nelson, Sioux City, for appellee.

THOMPSON, Justice.

The case before us presents three questions for decision. Two of them are matters of the first impression in Iowa, and are difficult and important. In order that they may be understood the facts of record and the procedures had in the trial court must be stated. So far as they concern the first two points, the facts were stipulated.

On May 18, 1955, a group of ladies, residing in Sioux City, planned to attend a meeting of a church sewing circle in Jefferson, S.D. The defendant had agreed to furnish transportation for at least the first stage of the journey. Mrs. A. W. Horst, the mother of Susan Horst, telephoned the defendant and asked her for a ride for herself and her mother. Susan Horst was at the time thirteen days old. The defendant agreed to pick up Mrs. Horst and her mother, and did so, at about 1:30 p. m. Mrs. Horst brought Susan with her, holding her in her lap. She also brought her young son Stephen. Mrs. Horst and Susan were in the front seat, on the right-hand side, with her mother and Stephen and another woman, Mrs. Duke, whom the defendant was also transporting, in the back. We shall hereafter refer to Susan as the plaintiff, although the action is brought by her father as next friend.

With this seating arrangement, the defendant stopped her automobile on the west side of a street known in the record as Grandview, headed south on a downhill slope. Apparently the brake was set; at least the car remained stationary, about a car's width from the west curb, with the motor running. An elderly lady, Mrs. Davis, who was also to make the trip, lived on the east side of Grandview opposite the point where the car stopped. The defendant got out of the car and went to assist Mrs. Davis across the street and into the car. Mrs. Davis got in through the left front door and under the wheel; as she did so, or immediately afterward and before the defendant had entered the car it started, caromed off a parked car, ran down the hill and into a schoolhouse. The plaintiff was severely injured.

Plaintiff's suit having been brought and the matter being at issue, plaintiff made her application for an adjudication of law points, under R.C.P. 105, 58 I.C.A. The requested points to be adjudicated were these:

'1. Can a month-old infant be a passenger or a guest within the provisions of Section 321.494 of the Code of Iowa [I.C.A.]?'

'2. Can a person in charge of an automobile be the operator of it within the provisions of Section 321.494 of the Code [I.C.A.] when such person is absent from the automobile?'

It is evident that if either or both of the foregoing questions should be answered in the negative, Section 321.494 (the Iowa guest statute) would not apply, and the burden upon plaintiff to prove her case would be that of showing negligence only. But if both points were determined in the affirmative, plaintiff would be put to the necessity of showing recklessness. One count of her petition claimed upon specific negligences; one upon res ipsa loquitur (likewise depending upon negligence); and one alleged recklessness. The trial court, through Judge Ralph C. Prichard, adjudicated both law points submitted to it by holding that the plaintiff was a guest and the defendant was the driver and operator of the car, both within the meaning of Section 321.494, supra. This left plaintiff only her recklessness count upon which to rely; and, the case coming on for trial upon this issue, before Judge R. W. Crary, a verdict was directed for the defendant at the close of plaintiff's evidence; the court thereby holding that no jury question had been engendered upon the question of recklessness.

I. The errors assigned raise the questions suggested by the application for adjudication of law points set out above, and a third one as to the correctness of the trial court's ruling that recklessness was not shown, as a matter of law. We shall first determine whether a small child, in this case an infant thirteen days of age, when riding with and in the care of its mother and by her consent, is a guest within the meaning of Section 321.494. Since we think the exact wording of this statute is important, we set it out.

'321.494. Guest statute. The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire unless damage is caused as a result of the driver of said motor vehicle being under the influence of intoxicating liquor or because of the reckless operation by him of such motor vehicle.'

The purpose for which this statute was enacted is also material. We have given consideration to this thought in Bookhart v. Greenlease-Lied Motor Company, 215 Iowa 8, 11, 244 N.W. 721, 722, 82 A.L.R. 1359, 1362, where we quoted with approval from Crawford v. Foster, 110 Cal.App. 81, 293 P. 841, 843:

"* * * As the use of automobiles became almost universal, the proverbial ingratitude of the dog that bites the hand that feeds him, found a counterpart in the many cases that arose, where generous drivers, having offered rides to guests, later found themselves defendants in cases that often turned upon close questions of negligence. Undoubtedly, the Legislature, in adopting this act, reflected a certain natural feeling as to the injustice of such a situation. * * *"

There is a considerable volume of authority upon the question of a minor of tender years qualifying as a guest under the statutes which have been adopted generally in the various states. Some of them require in effect an invitation and an acceptance, as for example California and Nebraska. It is argued by the appellant here that being a guest implies an invitation, express or implied, and an acceptance; and that a thirteen day old infant is incapable of accepting, and so cannot be a guest. Except for dicta found in a few cases, there are none which hold flatly that such a child may not under some circumstances be a guest. Other cases, relied upon by the defendant-appellee, say that the acceptance may be by the parent or other person having legal custody and care of the infant. The cases cited by the plaintiff are, without exception, those in which a child was taken into an automobile, absent its natural guardians or any consent of approval from them, or, as in Hart v. Hogan, 173 Wash. 598, 24 P.2d 99, in which the accompanying parent was herself not a guest. There is, in fact, in the latter case an intimation that the child's statutes follows that of the parent. Likewise in Kudrna v. Adamski, 188 Or. 396, 216 P.2d 262, 16 A.L.R.2d 1297, from which the plaintiff quotes, the driver of the car was not its owner, but was operating it at the request of the father and mother of the injured infant because the father, who was the actual owner, was not able to make the trip. There is dictum which supports plaintiff's position; but the case has been distinguished and an opposite result reached in the later case of Welker v. Sorenson, 209 Or. 402, 306 P.2d 737, 738. The Oregon Supreme Court pointed out, in the later case, that in the Kudrna case the mother herself was not a guest, and that it had there said: 'We do not decide that a child of tender years cannot, under any circumstances, be a guest.' It held in the Welker case that when the child was riding with its mother, who was a guest, her children, in her custody, were also guests.

The plaintiff relies largely upon two cases: Rocha v. Hulen, 6 Cal.App.2d 245, 44 P.2d 478, 483; and Fuller v. Thrun, 109 Ind.App. 407, 31 N.E.2d 670. It will be observed that neither of these cases was decided by a court of last resort. In neither case was the injured child accompanied by its natural guardian, nor was there any evidence of consent of such guardian to the acceptance of the ride. There is dictum in each case which says that an infant incapable of accepting an invitation to ride cannot be a guest, under the wording of the particular statute involved. The distinction is pointed out in the later case of Buckner v. Vetterick, 124 Cal.App.2d 417, 269 P.2d 67, 69. The California statute, Section 403, West's Ann.Vehicle Code, defines a guest as one who 'accepts a ride in any vehicle upon a highway without giving compensation for such ride.' 'Accepts', it is urged, implies an invitation and an acceptance, and a small child, being incapable of consenting, cannot become a guest. The Buckner case, supra, points out that many important decisions, such as whether an operation shall be performed or other medical services rendered, are made constantly and necessarily for minors by their parents. To this might be added decisions as to what church, and what school, the child shall attend; where it shall live, in what amusements it may indulge, what journeys it may take, and a host of other important determinations. There seems no good reason why the natural guardian, usually the parent, could not accept an invitation to ride gratuitously in a motor vehicle, for the child. Buckner v. Vetterick so holds. We are pointed to no case in which the consent of the parent was actually given in which it was held that the child was not a guest. In this category is the recent case of Green v. Jones, Colo., 319 P.2d 1083, 1086. It is there flatly stated, it is true, that 'To achieve the status of 'guest' there must be an invitation, expressed or implied, and an acceptance, formal, informal, or by act or deed.' The case then goes on to say that the injured child, aged two years, could not accept an invitation and so could not be a guest. She had been left overnight with her grandmother, who on...