Knutson v. Lurie
| Decision Date | 21 November 1933 |
| Docket Number | 42101 |
| Citation | 251 N.W. 147,217 Iowa 192 |
| Parties | ORVILLA KNUTSON, by her next Friend, OLE KNUTSON, Appellee, v. DAVE LURIE et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Webster District Court.--H. E. FRY, Judge.
This is an action by the plaintiff to recover damages against the defendants for personal injuries received by the plaintiff while riding in the automobile of the defendant Dave Lurie which was driven by the defendant Mrs. Dave Lurie. The case was tried to a jury, which returned a verdict for the plaintiff. Judgment was entered thereon, and the defendants appeal.
Reversed.
Stowe & Kirchner, and Putnam, Putnam, Langdon & Fillmore, for appellants.
Frank S. Lovrien, and Mitchell & Mitchell, for appellee.
Dave Lurie and Mrs. Dave Lurie, the defendants-appellants, are husband and wife. They live in the northeast part of Fort Dodge. Some time in the latter part of June, the Luries employed Orvilla Knutson, who by her next friend and father, Ole Knutson, is the plaintiff-appellee. Orvilla Knutson was thus employed by the appellants as a domestic to work in their home. She, according to her testimony, was "to clean house", "get the meals", or assist in getting the meals, and "take care" of the two Lurie children then at home. The one child was two years old and the other seven.
A few days before July 3, 1931, the maid, Orvilla Knutson, took a pair of her own dress shoes to a shoe repair shop in Fort Dodge. Her purpose in so doing was to have the shoes repaired. During the day of July 3, 1931, Mrs. Lurie was entertaining guests from Omaha who were staying, at least part of the time, in the home of some of Mrs. Lurie's relatives in Fort Dodge. In the afternoon of July 3, Mrs. Lurie took these guests to the Orpheum Theatre. Before Mrs. Lurie left with her guests, however, the maid, Orvilla Knutson, asked her if she would get the shoes left at the repair shop, as before explained. Mrs. Lurie, the appellant, said she would do so. Whereupon Mrs. Lurie went to the Orpheum Theatre with her guests. They returned in the afternoon at 5:30 or 6 o'clock. Upon their return, Orvilla Knutson asked Mrs. Lurie if she had gotten the shoes, to which Mrs. Lurie replied that "she had forgotten them".
Dinner was then prepared and served to the guests. After the meal was served, Mrs. Lurie, her guests, the two children, and the maid, Orvilla Knutson, got into the car and went down town to get the shoes. The automobile, upon this occasion, was driven by Mrs. Lurie. When arriving at the shoe repair shop, Orvilla Knutson alighted from the car, obtained the shoes, and paid for their repair. She then again entered the automobile and Mrs. Lurie proceeded homeward. As the party arrived at Second Avenue North and Eighteenth Street on their way home, another car on a side street approached the intersection at the same time and there was a collision. Because of the collision, Orvilla Knutson was severely injured.
In due time, Orvilla Knutson, through her next friend, Ole Knutson, commenced this action against the appellants to recover damages for the injuries. Dave Lurie was made a party to the suit because he owned the automobile and consented that it be driven by the appellant Mrs. Dave Lurie. The basis for recovery set forth in the plaintiff's petition was negligence. By way of answer to the petition, the appellants pleaded: First, that the proximate cause of the injury was the negligence of the driver of the car on the side street; and, second, that Orvilla Knutson, at the time in question, was a guest in appellants' car, and therefore could not recover on any basis under the circumstances except for the recklessness of the appellant Mrs. Dave Lurie. At the close of the plaintiff's evidence, a motion was made by the appellants for a directed verdict in their favor, on the theory, among others, that the appellee had not proven recklessness on the part of Mrs. Dave Lurie. That motion, however, was overruled, and the issues were submitted to the jury. After consideration, a verdict was returned for the appellee, and the district court entered judgment accordingly. From the judgment thus entered, the appellants appeal.
I. A reversal is first asked by the appellants because the district court refused to sustain its motion for a directed verdict on the theory that the appellee could recover, if at all, only upon the ground of recklessness, as distinguished from negligence. When stating her cause of action, the appellee did not allege recklessness. It is her theory that she was not a guest in the appellants' car at the time in question, but rather a servant performing her master's duties, and therefore need not allege recklessness in her petition. Consequently it is important at this place to determine whether there is evidence upon which the jury could find that Orvilla Knutson was a guest in the appellants' car. Section 5026-b1 of the 1931 Code 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."
The appellant Mrs. Dave Lurie was not under the influence of intoxicating liquor when the accident happened, and therefore no recovery is sought under the statute on that basis.
But it is claimed by the appellee that she was not a guest in the appellants' car, as contemplated by the aforesaid statute, and therefore she is entitled to recover from the appellants on the ground of negligence. On the other hand, it is argued by the appellants that Orvilla Knutson was a guest in their automobile, and therefore she can recover for her injuries only by proving that Mrs. Dave Lurie recklessly caused the collision. If Orvilla Knutson, however, was not a guest or an occupant of the appellants' car by invitation, but was a passenger therein for the purpose of performing and in order to perform her duties as a servant, then she can recover for the negligence of the driver and need not, in such event, rely upon the reckless operation of the car. One may be a passenger in an automobile without being a guest, a mere passenger by invitation, or a passenger for hire in the legal sense of the word. There are, in fact, a multitude of persons riding in cars daily who are not guests, passengers by mere invitation, or passengers for hire within the legal meaning of that term. A person riding in an automobile may be there because of the relationship of master and servant existing between him and the owner. In other instances, the rider in an automobile may be there (without the relationship of master and servant) for the definite and tangible benefit of the owner or operator; or such person may be in the automobile (without the relationship of master and servant) for the mutual, definite, and tangible benefit of the owner or operator on the one hand, and of himself on the other. Kruy v. Smith et ux., 108 Conn. 628, 144 A. 304; Gage v. Chapin Motors, Inc., 115 Conn. 546, 162 A. 17; Latham v. Hankey, 117 Conn. 5, 166 A. 400; Russell v. Parlee, 115 Conn. 687, 163 A. 404; Smith v. Fall River Joint Union High School District et al., 118 Cal.App. 673, 5 P.2d 930; Sullivan v. Richardson, 119 Cal.App. 367, 6 P.2d 567; Sumner v. Edmunds et al. (Cal. App.) 130 Cal.App. 770, 21 P.2d 159; Royal Finance Co. of California v. Miller, 47 F.2d 24 (9th Circuit); Labatte v. Lavallee, 258 Mass. 527, 155 N.E. 433; Lyttle v. Monto, 248 Mass. 340, 142 N.E. 795; Jackson v. Queen, 257 Mass. 515, 154 N.E. 78; Loftus v. Pelletier, 223 Mass. 63, 111 N.E. 712. See, also, Bookhart v. Greenlease-Lied Motor Co., 215 Iowa 8, 244 N.W. 721, 82 A. L. R. 1359; Crawford v. Foster, 110 Cal.App. 81, 293 P. 841.
When the legislature of Iowa used the phrase in section 5026-b1, before quoted, to-wit, "as a guest or by invitation and not for hire", its evident attempt was to exclude recovery by a guest or a mere invitee except for the reckless operation of the automobile. The use of the phrase "and not for hire" was merely to aid in the understanding of the meaning of the word "guest" and of the phrase "by invitation". By using those words and phrases, the legislature did not intend to include all persons who might from time to time ride in an automobile, as before explained. It is evident that the intent of the legislature, therefore, was to recognize nongratuitous riders in an automobile, as well as a guest and a mere invitee. Likewise, it is apparent that the legislature intended to distinguish between "passenger for hire," as that term is used in law, and other nongratuitous riders in an automobile. Through the legislation, a safeguard against the prevalent claims for damages by guests or mere invitees was placed around the owner and operator of the car. Although, in the transportation of the guest or the mere invitee, no fare of any kind was asked by the owner or operator, yet the guest and invitee, without gratitude, frequently commence suit on every conceivable charge of negligence.
In Bookhart v. Greenlease-Lied Motor Co., 215 Iowa 8, (244 N.W. 721, 82 A. L. R. 1359) supra, we said, reading on page 11:
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