Kaplan v. Kaplan

Decision Date16 December 1931
Docket NumberNo. 40648.,40648.
CourtIowa Supreme Court


Appeal from District Court, Polk County; Loy Ladd, Judge.

The plaintiff is the adult daughter of the defendant. She brings this action for the recovery of damages for personal injury alleged to have been sustained by reason of the claimed reckless operation by her father of an automobile in which she was riding as a gratuitous guest. The action is brought under the so-called guest statute, section 5026-b1, Code 1927. Trial to the court and a jury. At the close of plaintiff's evidence, the court sustained defendant's motion for a directed verdict. Plaintiff appeals.

Affirmed.Francis, Maley, Witmer & Todd, of Des Moines, for appellant.

Hallagan, Fountain & Stewart, of Des Moines, for appellee.


The accident in which the plaintiff received her injuries occurred near Atlantic on July 9, 1928. The plaintiff is the adult daughter of the defendant, engaged as a stenographer and living in the home of her father and stepmother in Des Moines, but paying for her board and room. On Saturday, July 7th, while the plaintiff was at her place of work, her father called her by phone and invited her to go with him to Omaha over the week-end to visit some relatives. The plaintiff consented. Sometime after noon, the father, accompanied by the daughter, left Des Moines for Omaha, but on account of the approaching of a storm they were stopped in their journey at Oakland, where they remained all night. Sunday morning they continued their journey to Omaha, but, on account of the rain the evening before, the roads were quite muddy. They put on chains and arrived in Omaha about two o'clock p. m. They visited with their relatives and friends until about midnight. They started on their return trip about 6:30 Monday morning, July 9th, the day of the accident. By this time the sun had dried the roads pretty well, and they were not rough. Enroute from Omaha to Atlantic, plaintiff felt tired, and, when the father stopped at the latter city for gasoline, both she and her father got out of the car. Upon leaving Atlantic, at the suggestion of the defendant, the plaintiff took the back seat of the car and almost immediately fell asleep. It was a nice warm day, and they faced the sun as they proceeded easterly from Atlantic. Plaintiff's next conscious moment was in a hospital at Atlantic. The accident occurred upon a dirt road seven or eight miles east of Atlantic. The road had been dragged that morning, and there were small clods in the road. There was only one eyewitness to the accident, who was approaching from the east, and who testified: “I was about sixty rods from the Kaplan car and driving toward it. When I saw the Kaplan car, it was swinging across the road and turned over. The highway runs east and west, and Kaplan seemed to be a little to the left-hand side of the road coming east and his car was turned across the road like he was trying to get to his side of the road. I seen the side of the car when it was rolling over. Just as I came over the hill when I could see the car right plain. The next thing I seen it was rolling. More of the car appeared to be north of the center of the road going east, then it was headed toward his side of the road. He had it cramped a little bit to get on his side of the road. Headed back to the south side of the road. He didn't get back to the south side of the road. He rolled off the north side of the bank on the north side. It left the road and finally came to a stop on the north side of the road and was then headed west, the same direction in which I was going. I saw the car turn over, but do not know how many times. I was too excited to count it. I don't know whether it turned over after it hit the bank or not. It must have turned over in the road. I drove up and stopped at the car. I saw Mr. Kaplan in the car. * * * The car was pretty badly wrecked on the inside. * * * Prior to the time the Kaplan car reached the edge of the road, it turned over in the middle of the highway. It was about the center of the north highway where the top struck the ground. I assisted in putting her (the plaintiff) in the ambulance. After they left, I made investigation of the marks where they turned over in the road to see how it turned over. It was kind of a mystery how it happened to be turned west. Where it hit the hard road, it didn't make much of a dent. You could see it nicely, and it seemed like when it got turned over it turned the car clear on around, and the momentum of it took it down the bank. I did not see their car long enough to judge how fast it was going. * * * It is hilly country through there. I was about sixty rods away from the Kaplan car when I first saw it. There was little clods in the center of the road. They had dragged it that morning. Those clods out in the road were all over the bottom there. It is a yellow clay and it makes hard clods. When I first saw the car, the front part of it was in the center of the road and the car was on an angle. It was No. 32 highway. The road on that day was in its usual and ordinary condition. It was a fair road. I did not have any difficulty in driving over it.”

The plaintiff testified: “I took no part in the operation of the automobile during the entire trip. I had no control over the automobile at any time. My father owned the car, and it was a Studebaker, Five-passenger Sedan.”

The father, subpœnaed as a witness by the plaintiff, testified: “I owned the automobile which was wrecked in the accident on the 9th day of July, 1928, near Atlantic. Rose Kaplan did not have any interest or ownership in it. She did not have any control over the automobile as to where it was going or in what direction it was going in that trip.”

As to the cause of the accident, the plaintiff testified: “The first conversation I had with my father after the accident on July 9th was in the hospital. His room was about two doors from mine, and when I regained consciousness I called to him and asked what had happened. He said he must have fallen asleep at the wheel and caused the accident. He said he was rather tired and had fallen asleep, and inasmuch as we were facing the east the sun was in his eyes, and he supposed that helped make him more drowsy.”

The defendant's wife testified: “I had a conversation with Mr. Kaplan when I arrived at the hospital in Atlantic, Monday, July 9th. I asked him what happened, and he said he was tired and didn't sleep the night before much and he was sleepy and fell asleep.”

The defendant testified: “The only thing I can tell is I remember only one piece of road after we left Atlantic. There is a high bridge, and I remember crossing that. After I crossed that, about 2 1/2 miles down there I must have fallen asleep. * * * The only thing I remember is waking up in the hospital.”

Both the appellant and appellee were severely injured as a result of the accident.

[1] The car belonged to the appellee. He drove, managed, and controlled it. Consequently the appellant was his guest. See Stilson v. Ellis, 208 Iowa, 1157, at page 1165, 225 N. W. 346;Cram v. City of Des Moines, 185 Iowa, 1292, 172 N. W. 23. This is conceded by the parties.

[2] The motion for the defendant for a directed verdict was based on two grounds, to wit: (1) That the plaintiff was, as a matter of law, guilty of contributory negligence; and (2) that the defendant, as a matter of law, was not guilty of recklessness within the meaning of the statute. This motion was sustained.

Our statutory law, section 5026-b1, Code 1927, 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.”

In Siesseger v. Puth, 239 N. W. 46, 54, we made somewhat definite pronouncements relative to the proper construction to be placed upon said statutory enactment. We there said: “As recklessness is more than negligence, it follows that contributory negligence is not an element to be considered or dealt with, either by pleading, proof, or instruction of the court, in cases brought under this statute.”

See Neessen, Administratrix, v. Armstrong (I...

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