Johnson v. Johnson
| Decision Date | 10 February 1970 |
| Docket Number | No. 53817,53817 |
| Citation | 174 N.W.2d 444 |
| Parties | Marjorie E. JOHNSON, Executor of the Estate of Russell Johnson, Deceased, Appellant, v. Harold JOHNSON and Bernice Carison, Appellees. |
| Court | Iowa Supreme Court |
La Von E. Billings, Red Oak, and William H. Mecham, Omaha, Neb., for appellant.
Johnson, Stuart, Tinley & Peters, Council Bluffs, for appellees.
By action at law plaintiff widow seeks recovery of damages from defendants, owner and operator of a livestock truck, for claimed negligence caused death of her husband, an occupant in the vehicle when it was wrecked. On jury waived trial the court found plaintiff failed to prove her decedent was other than a guest, and denied recovery. Plaintiff appeals. We affirm.
The material facts are not in dispute. Plaintiff and her husband, Russell Johnson, were engaged in the farming and livestock feeding business near Essex.
Russell engaged Harold Johnson, defendant truck owner, to transport a load of cattle to an Omaha first occasion buyer.
When Bernice Carlson, remaining defendant employee truck operator, arrived at the farm, March 21, 1966, Russell helped load the livestock. That having been accomplished, he said 'I believe I'll ride along and see what the cattle weigh and pick up my check.' It was not necessary, however, that Russell be present when the cattle were unloaded.
The trip to market was uneventful. While in Omaha plaintiff's decedent viewed the weighing and received payment.
The two men then started their return trip but en route the truck went off the highway and was wrecked. Russell Johnson's death resulted.
By Count I of her petition plaintiff asserts her husband's demise was proximately caused by specifically alleged negligence on the part of defendants. Count II states in part, '* * * plaintiff relies in this action upon his (sic) allegation of general negligence and carelessness under the rule of res ipsa loquitur.'
Answer by defendants admits an employer-employee relationship between them, that on the return trip from Omaha the truck went off the road, and as a result Russell received death causing injuries. They further deny negligence, and plaintiff's allegation to the effect her decedent was not a 'guest' in the vehicle.
No evidence whatsoever was presented relative to events immediately prior to or at time of the fatal accident.
Appellant asserts three 'propositions' in support of a reversal. As a matter of grace they will be considered as 'errors assigned' in this law action. See rule 344(a)(3), Rules of Civil Procedure, and Stewart v. Hilton, 247 Iowa 988, 991, 77 N.W.2d 637.
We are here asked to reverse upon appellant's claim that trial court erred in (1) holding the guest statute, section 321.494, Code, 1966, precluded recovery; (2) finding the res ipsa loquitur doctrine creates, at best, a presumption of negligence, not recklessness; and (3) failing to require rebuttal by defendants of the presumptive negligence arising from nature of the accident.
I. Findings of fact by trial court have the effect of a jury verdict. Furthermore the record will be viewed in that light most favorable to the judgment, and if supported by substantial evidence it will not be disturbed on appeal. This does not, however, exclude inquiry as to whether trial court erred in the admission of evidence or application of erroneous rules of law which materially affected the decision. Rule 344(a)(3), R.C.P.; Christensen v. Miller, Iowa, 160 N.W.2d 509, 511; Hamilton v. Wosepka, Iowa, 154 N.W.2d 164, 166; Morris Plan Leasing Co. v. Bingham Feed and Grain Co., 259 Iowa 404, 413, 143 N.W.2d 404; and McCune v. Muenich, 255 Iowa 755, 757, 124 N.W.2d 130.
II. Code section 321.494, provides: '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.'
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Keasling v. Thompson, 56364
...200 N.W.2d 544 (Iowa 1972). But a passenger permitted to ride to market without such inducement was held to be a guest in Johnson v. Johnson, 174 N.W.2d 444 (Iowa 1970). The jury may find a truck passenger not a guest even though asked to accompany the driver to keep him company if also exp......
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Farmers Butter and Dairy Co-op. v. Farm Bureau Mut. Ins. Co.
...precludes recovery by insured-bailee from defendant-insurer. I. Our review is not de novo. And as this court said in Johnson v. Johnson, 174 N.W.2d 444, 445 (Iowa): 'Findings of fact by trial court have the effect of a jury verdict. Furthermore the record will be viewed in that light most f......
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...Code, are well established. They are discussed in many cases. See, e.g., Wharff v. McBride, 183 N.W.2d 700 (Iowa 1971); Johnson v. Johnson, 174 N.W.2d 444 (Iowa 1970); Ross v. McNeal, 171 N.W.2d 515 (Iowa 1969); Jackson v. Brown, 164 N.W.2d 824 (Iowa 1969); In re Estate of Ronfeldt, 261 Iow......