Iowa Mut. Ins. Co. v. Combes

• Decision Date: 15 December 1964
• Docket Number: No. 51530,51530
• Citation: 131 N.W.2d 751,257 Iowa 135
• Parties: IOWA MUTUAL INSURANCE COMPANY, a Corporation, Appellee, v. Lloyd H. COMBES d/b/a Combes Standard Service, LeRoy C. Peters, Miller Excavating Company, a Corporation, Appellants. IOWA HARDWARE MUTUAL INSURANCE COMPANY, Appellee, v. Lloyd H. COMBES d/b/a Combes Standard Service, LeRoy C. Peters, Miller Excavating Company, a Corporation, Appellants.
• Court: Iowa Supreme Court

Page 751

131 N.W.2d 751

257 Iowa 135

IOWA MUTUAL INSURANCE COMPANY, a Corporation, Appellee, v. Lloyd H. COMBES d/b/a Combes Standard Service, LeRoy C. Peters, Miller Excavating Company, a Corporation, Appellants.

IOWA HARDWARE MUTUAL INSURANCE COMPANY, Appellee, v. Lloyd H. COMBES d/b/a Combes Standard Service, LeRoy C. Peters, Miller Excavating Company, a Corporation, Appellants.

No. 51530.

Supreme Court of Iowa.

Dec. 15, 1964.

Sifford, Wadden & Davis, Sioux City, for appellants Lloyd H. Combes d/b/a Standard Service, and LeRoy C. Peters.

Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for appellant Miller Excavating Co.

Stilwill, Wilson & Rhinehart, Sioux City, for appellee Iowa Mutual Ins. Co.

Stewart & Hatfield, Sioux City, for appellee Iowa Hardware Mutual Ins. Co.

GARFIELD, Chief Justice.

Iowa Mutual Insurance Co. and Iowa Hardware Mutual Insurance Co., respectively, brought these law actions as assignees of their insured, one Coyne, of his claims for damages resulting from a collision of three motor vehicles at an intersection in Sioux City, causing a truck to strike and injure Coyne's refreshment stand. Defendants are Miller Excavating Co. (herein called Miller), owner of the truck, Combes, employer of the driver of the truck, and Peters, the driver. Other defendants, owners or drivers of the other two vehicles, were absolved from liability by the trial court and their joinder as defendants may be disregarded.

The actions were consolidated and tried to the court without a jury. From findings and judgments for plaintiffs against the three named defendants they have appealed. However, Combes and Peters have filed no briefs and apparently abandoned their appeals. Only plaintiffs and Miller thus remain as active parties to the appeal.

The trial court found the proximate cause of the collision and resulting damage to plaintiffs' assignor was Miller's negligence in not equipping the truck with adequate brakes and Peters' failure to keep it under control. Also that Peters was driving the truck with Miller's implied consent and therefore under section 321.493, Code 1962, I.C.A., it was liable for Peters' negligence.

Miller assigns two principal errors. They are directed to 1) the finding of inadequate brakes, and 2) failure to direct a verdict for Miller (or dismiss the case) on the ground it did not consent to Peters' driving of the truck.

In considering these errors the evidence will be viewed in the light most favorable to plaintiffs--this is also the light most favorable to the trial court's judgments. Its findings of fact have the effect of a special verdict and are binding upon us if supported by substantial evidence.

I. At the time of the accident Miller was excavating dirt in the Sioux City area. It had six or seven large trucks there, each with a driver, one of whom was Temme. Some of the trucks were equipped with a radio. Temme acquired a radio from a fellow driver and obtained permission of Bartlett to have it installed in the truck Temme drove. Bartlett was Miller's superintendent in charge of the trucks and drivers and was its highest representative in Sioux City.

Combes operated a gasoline service station and had a contract with Miller to repair tires on its trucks. On the morning of June 6, 1962, the day of the accident, Temme drove his truck to the Combes station for repair of a flat tire which was removed from the truck and replaced with another tire. Temme asked Combes if 'they' could install the radio in the truck. Combes replied they did not do that type of work. Temme then talked with Combes' employee, Peters, who said he could install the radio. Combes gave his consent if they found time.

During the noon hour Temme returned with the truck, leaving it in a parking lot across an alley from Combes' station, perhaps 100 feet away. Peters was to install the radio that day, then leave the truck at the side of the street and put the ignition key under the floor mat so Temme could get it the next morning before the station opened for business. Bartlett was at the station with Temme. The finding is warranted Bartlett heard the talk between Temme and Peters, made no objection and repeated the direction as to where the truck was to be left; also that he knew Temme left the truck in the parking lot.

Peters later drove the truck from the parking lot to the station and installed the radio but it did not function properly. Mr. Boe, operator of a radio repair shop three blocks from Combes' station, happened in the station about 2:30 and Peters told him of the trouble with the radio. Boe said the truck would have to be driven to his shop for him to fix the radio. At Combes' direction Peters drove the truck the three blocks to Boe's shop to have the radio repaired.

After Boe fixed the radio Peters drove the truck down hill toward the Combes' station on the same street. About half way Peters applied the brakes and they functioned properly. However, about three-fourths block from the intersection where the station was located Peters again applied the brakes and they did not function. His efforts to stop or reduce speed were to no avail, the collision with the other two vehicles followed, the truck striking and injuring Coyne's place of business diagonally across the intersection from the Combes station. Details of the collision and damage to Coyne's establishment need not be stated.

II. Before considering the assigned error in the finding of inadequate brakes on the truck, we may observe that if there were error in this regard it would not support a reversal. As stated, the trial court found proximate negligence in two respects--inadequate brakes and failure to keep the truck under control. Miller does not challenge the finding as to lack of control and it is sufficient to support plaintiffs' claims that the driver's negligence caused the damage. The finding as to inadequate brakes was not essential to recovery and any error therein, based upon claimed insufficient evidence, must be deemed without prejudice. Purcell v. Chicago & N. W. R. Co., 117 Iowa 667, 668, 91 N.W. 933, 935; In re Estate of Dashiell, 250 Iowa 401, 403, 94 N.W.2d 111, 112, and citations. See also Thompson Wholesale Co. v. Frink et al., Iowa, 131 N.W.2d 779, 781.

III. In any event we are not persuaded the finding as to inadequate brakes was error. Section 321.430, Code 1962, I.C.A., requires every motor vehicle to be equipped with brakes adequate to control the movement of and stop and hold the vehicle, including two separate means of applying the brakes, each of which shall be effective to apply the brakes to at least two wheels. If these two means are connected in any way they shall be so constructed that failure of one part of the mechanism shall not leave the vehicle without brakes on at least two wheels.

A long line of decisions commencing with Kisling v. Thierman, 214 Iowa 911, 915-916, 243 N.W. 552, 554, holds, with certain exceptions not here applicable, that violation, without legal excuse, of a statute which prescribes the care required for traffic safety constitutes negligence per se. Such decisions involving violation of the statute requiring adequate brakes include Amelsburg v. Lunning, 234 Iowa 852, 14 N.W.2d 680; Kohler v. Sheffert, 250 Iowa 899, 96 N.W.2d 911; Peters v. Rieck, Iowa, 131 N.W.2d 529 (filed November 17, 1964).

There is clear evidence that shortly before the collision Peters properly applied the air brakes, the hand emergency brake and the electric emergency brake and none of them functioned. Under the Kohler and Peters decisions, supra, this made a case for the trier of facts in the first instance and required defendants to prove a legal excuse for the violation of the statute. The trial court found insufficient proof of such excuse and the finding is not assailed. Indeed Miller seems not to have contended in the trial court, or here, it had a legal excuse for violation of section 321.430.

Miller argues that failure of the brakes to function may have been due to Peters' lack of experience in using air brakes or his improper application of them. The argument is not supported by the record and is purely conjectural and speculative. There is undisputed evidence Peters had driven trucks equipped with air brakes for two years, knew how to apply then and, as stated, properly did so.

Miller contends the finding of negligence in not having adequate brakes was improper unless it was shown it had knowledge of the defective condition. Language quoted from American Jurisprudence in Amelsburg v. Lunning, at page 858 of 234 Iowa, is cited in support of this view. However, that cannot be considered the holding of the Amelsburg case. Kohler v. Sheffert, supra, 250 Iowa 899, 905-906, 96 N.W.2d 911, rejects a similar contention.

As previously indicated, it seems fairly clear from our decisions that not having a motor vehicle equipped with adequate brakes as required by statute constitutes negligence in the absence of proof of a legal excuse therefor. Any other holding would be a departure from the long line of Iowa precedents previously referred to.

IV. The vital question the appeal presents is whether Miller was entitled to 'a directed verdict' or a dismissal on the ground it appears as a matter of law it did not consent to Peters driving the truck. As stated, the trial court found Miller impliedly gave its consent thereto.

The pertinent part of Code section 321.493, I.C.A. provides: 'In all cases where damage is done by any motor vehicle by reason of negligence of the driver, and driven with the consent of the owner, the owner of the motor vehicle shall be liable for such damage.'

The latest of many decisions involving the quoted statute is McKirchy v. Ness, 256 Iowa--, 128 N.W.2d 910, 912. We cannot improve on this appraisal of our prior decisions found in the McKirchy Opinion:

'We have frequently said the defense of nonconsent is one which can be easily made, with little...