Krell v. May

• Decision Date: 04 April 1967
• Docket Number: No. 52473,52473
• Citation: 149 N.W.2d 834,260 Iowa 518
• Parties: Kenneth R. KRELL, Appellee, v. Harold S. MAY and Stephen May, Appellants. Carol KRELL, by her Father and Next Friend, Kenneth R. Krell, Appellee, v. Harold S. MAY and Stephen May, Appellants.
• Court: Iowa Supreme Court

Page 834

149 N.W.2d 834

260 Iowa 518

Kenneth R. KRELL, Appellee, v. Harold S. MAY and Stephen May, Appellants.

Carol KRELL, by her Father and Next Friend, Kenneth R. Krell, Appellee, v. Harold S. MAY and Stephen May, Appellants.

No. 52473.

Supreme Court of Iowa.

April 4, 1967.

Westfall, Laird, Burington, Bovard & Heiny, Mason City, for appellants.

Hobson, Cady & Drew, Hampton, and Lundy, Butler, Wilson & Hall, Eldora, for appellees.

LARSON, Justice.

This is an action for damages for personal injuries brought by Carol Krell, a minor, by her father and next friend, Kenneth R. Krell, and by the father for medical expenses and loss of services, against the defendants, Harold S. May and his son Stephen May, as a result of a one-car accident near Hampton, Iowa. The cause was pleaded in three divisions. Division I alleged contract and negligent breach of duty plus negligent entrustment, Division II contract and negligent breach of duty, and Division III reckless operation of the father's automobile by Stephen. The trial court directed a verdict for defendants on Divisions I and II and submitted Division III. The jury returned a verdict for Carol Krell for $40,000 and a verdict for her father, Kenneth Krell, for $10,000. When defendants' motion for judgment notwithstanding the verdict was overruled, defendants appealed. Appellees cross-appealed from the verdict directed against them on Divisions I and II.

Insofar as appellants are concerned, the sole question presented here is so to the sufficiency of the evidence to generate a jury question on recklessness. Appellees' cross-appeal was submitted in the alternative and is to be considered only in case we should reverse on the recklessness issue.

I. Our first consideration, therefore, is as to the sufficiency of the evidence of reckless operation of the automobile in which Carol, Stephen, and Ramona Schumacher were riding when the accident occurred. The jury's findings are binding upon us if supported by substantial evidence, and upon this appeal we view the evidence in the light most favorable to plaintiff. See Rule 344(f) (1), (2), Rules of Civil Procedure; Tuttle v. Longnecker, Iowa, 138 N.W.2d 851. In applying this rule we must, of course, keep in mind that it is plaintiffs' burden to prove the necessary elements of recklessness. Beletti v. Schuster, 253 Iowa 1166, 1169, 115 N.W.2d 858, 860, and citations. It is unnecessary to again repeat the various definitions of reckless operation we have used in considering section 321.494 or to restate the several elements thereof heretofore recognized by us. Generally stated, we have required evidence of conduct which shows no care, coupled with disregard of consequences, an absence of heed or concern for consequences to others. Fundamentally, we are concerned with the mental attitude of the operator of the vehicle. Martin v. Cafer, Iowa, 138 N.W.2d 71; Fritz v. Wohler, 247 Iowa 1039, 1045, 78 N.W.2d 27, and citations; 8 Am.Jur.2d, § 489, p. 57; 6 A.L.R.3d, § 2(a), p. 774; 8 Drake Law Review 128.

In Martin v. Cafer, supra, we said at page 74 of 138 N.W.2d: '(2) There must be evidence of defendant's knowledge, actual or chargeable, of danger and proceeding without any heed of or concern for consequences.'

In Fritz v. Wohler, supra, we quoted with approval from Nesci v. Willey, 247 Iowa 621, 624, 75 N.W.2d 257, 259, as follows: 'To constitute recklessness under the guest statute, conduct must be more than negligent and must manifest a heedless disregard for or indifference to the consequences or the rights or safety of others. It, of course, need not involve moral turpitude or wanton and willful misconduct. Harvey v. Clark (232 Iowa 729, 6 N.W.2d 144, 143 A.L.R. 1141). There must be an awareness, actual or constructive of the unusual danger presented by the circumstances, and also a manifestation of 'no care.' Schneider v. Parish, supra (242 Iowa 1147, 49 N.W.2d 535). We have frequently and consistently held that conduct arising from mere inadvertence, thoughtlessness or error in judgment, is not reckless. Harvey v. Clark, Olson v. Hodges (236 Iowa 612, 19 N.W.2d 676) and Schneider v. Parish, all supra, and cases cited therein.' (Emphasis added)

In 8 Am.Jur.2d supra, § 489, Automobiles and Highway Traffic, at page 57, it is stated: 'Some guest statutes provide that a gratuitous guest riding in a motor vehicle has no right to recover against the owner or operator thereof for injuries sustained, Except where such injuries result from the latter's reckless disregard of the consequences, or heedlessness. This means an absence of heed or concern for consequences, a heedlessness of danger, a wanton disregard or Conscious indifference to consequences, implying a consciousness of danger and a willingness to assume the risk, or an indifference to consequences.' (Emphasis added)

In 6 A.L.R.3d, Guest Statute, § 2(a), at page 774, we find as to a driver's conduct, duty and care toward a guest, the following: 'Although there are no absolute rules in cases of this kind, and each case is to be judged in the light of the concomitant circumstances, many courts in jurisdictions having automobile guest statutes use the subjective element as a criterion in the determination of the defendant's conduct, that is, whether the host driver knew or should have known of the impending danger inherent under the surrounding circumstances, and hold that his excessive speed or his failure to slow down in the face of such danger implies gross negligence, wantonness, recklessness, or other similar degree of culpable conduct. A warning on the part of the guest or his request to slow down, in connection with the persistence on the part of the driver in continuing to drive at an excessive rate of speed, has been frequently stressed by the court as showing the necessary knowledge on the part of the defendant driver that serious injury to the guest would probably result from the speed at which he was driving under the circumstances. Resort to the subjective criterion by most courts explains why case under the automobile guest statutes cannot be based on the doctrine of res ipsa loquitur, although this does not mean that gross negligence, wantonness, or recklessness may not be shown by circumstantial physical evidence. And while emphasis is placed on the automobile operator's attitude of mind which imparts to an act of misconduct a tortious character under the guest statute, this does not mean that objective acts of the operator are overlooked. The fact is that the attitude of the operator may be gauged from his acts and conduct exhibited prior to the accident. When, notwithstanding his awareness of an unusual danger and the common probability of injury to his guests, he persists in driving at a high rate of speed in utter disregard of the safety of his passengers, then he has manifested gross negligence, recklessness, or the like under the pertinent guest statute.'

The following circumstances are revealed by the record. At the instance of his father Stephen, age 16, Carol, and Ramona, left the A & W Drive-In located on Highway 65 at the north edge of Hampton at about 11:15 P.M. on July 28, 1963, in Mr. May's car, for the purpose of taking the girls home. They had been working at the drive-in as 'car hops'. However, on their own they first decided to take a ride. Although they drove to Ramona's home to inform her grandmother of their intention, Carol did not want to stop at her home 'because she knew her parents would not let her go.'

Due to amnesia suffered by both Stephen and Carol as a result of their injuries in the accident, the only direct evidence of the events thereafter leading up to the accident was given by Ramona, who sat between Stephen and Carol in the front seat of the May automobile. She testified they drove northwest of Hampton into the Beed's Lake area, turned around at the west end of the lake and started back. This road was narrow, curvy, and lined with trees close to the travel lane. She said Stephen drove so fast on this stretch of road that it alarmed her and she asked him to slow down. He did slow down and left the park area without mishap, proceeded eastward on a gravel road and crossed Chapin Road, which was a stop road, without making a stop. He did stop a mile farther on at Highway 65. She recalled no conversation about the stop-sign-running, but said when they stopped at Highway 65 she wanted to go home. Someone said they were close to Robinson Park and suggested they drive over there and then go home. It was agreed, and they proceeded eastward down a hill on a new blacktop roadway, a drop of roughly 24 feet in about 2470 feet. The road then again became gravel. The blacktop was 21 feet 6 inches wide and the gravel road 27 feet wide. Ramona testified: 'Going down that hill the speed was accelerating continually from the time we crossed Highway 65 and up until the time of the accident.' She did not drive a car and did not estimate their speed, but said as they 'were going down the blacktop road going east I was scared.' Near the end of the blacktop the road started up a slight slope, 2 1/3 feet rise per 100 feet, and after they reached the gravel, she said that although she was looking straight ahead and did not look at Stephen, she 'looked at the steering wheel. * * * I observed Steve's hands going back and forth and the steering wheel with them from side to side.' She was not sure whether the speed then stayed the same or whether it was still accelerating. She did not know how many times the car was turned either to the right or to the left but knew it was being turned. She did not know for sure whether the brakes were applied, but said: 'When the brakes are applied you can feel that in the car. I did not feel anything like that that night.' She said the speed of the car at that time was faster than the speed of the car out at the lake. 'It was enough faster to make me more scared than I was at the lake.' She...