Lenth v. Schug

• Decision Date: 27 September 1938
• Docket Number: 44372.
• Citation: 281 N.W. 510,226 Iowa 1
• Parties: LENTH v. SCHUG.[a1]
• Court: Iowa Supreme Court

281 N.W. 510

226 Iowa 1

LENTH v. SCHUG.^[a1]

No. 44372.

Supreme Court of Iowa.

September 27, 1938

ANDERSON, J., dissenting.

Appeal from District Court, Clayton County; H. E. Taylor, Judge.

Plaintiff brought this action for the wrongful death of his minor intestate, Lunida Lenth. The jury returned a verdict for the plaintiff and defendant appeals.

Affirmed on condition.

Alex Holmes, of Strawberry Point, for appellant.

D. D Murphy & Son, of Elkader, for appellee.

STIGER Justice.

Plaintiff brought this action to recover damages to the estate of Lunida Lenth, a child of the age of 10 years, who was struck by an automobile owned by the State of Iowa and driven by the defendant, the injuries received causing her death.

One of the defenses to the action is that at the time of the accident the defendant was an agent and employee of the Board of Railroad Commissioners of the State of Iowa, was performing his duties as such employee, and by reason thereof is not liable to the plaintiff.

Appellant's first assignment of error is that the court erred in giving Instruction No. 10, which reads: " As to the defense that the defendant was in the employ of the state, through the Railroad Commission, you are instructed that, at the time of the accident, the defendant was engaged in no governmental function which would excuse him from the exercise of ordinary care which is such care as an ordinarily prudent person would exercise under like circumstances and conditions, and you are, therefore, instructed not to consider his defense of being in the employ of the state."

Appellant claims the above instruction deprives him of the defense that because he was an agent of the commission and performing a governmental function he had the same immunity from liability as his employer. Appellant relies on the cases of Shirkey v. Keokuk County, Iowa, 275 N.W. 706, and Hibbs v. Independent School District, 218 Iowa 841, 251 N.W. 606, which cases adhered to and reaffirmed the principle announced by some of the former decisions of this court that an agent or servant engaged in performing a governmental act is not liable in damages for negligence in doing the act. These cases have been expressly overruled by the recent case of Montanick v. McMillin, Iowa, 280 N.W. 608, which held that an employee of a governmental body who commits a wrongful act is liable to the person injured and does not share the immunity of his principal.

The trial court was right in instructing the jury not to consider the defense.

Appellant further claims that, assuming it was not a good defense, plaintiff waived its sufficiency by failing to attack it in the trial court. This court has frequently approved the rule that if matter pleaded as a defense is not challenged by motion or demurrer or otherwise, it will, if proven, defeat the plaintiff's action, though had the question been properly raised the answer would have been held to present no defense. Strand v. Bleakley, 214 Iowa 1116, 243 N.W. 306; Hornish v. Overton, 206 Iowa 780, 221 N.W. 483; Fairley v. Falcon, 204 Iowa 290, 214 N.W. 538; Ormsby v. Graham, 123 Iowa 202, 98 N.W. 724.

Plaintiff did not attack the defense by motion or demurrer. In his reply to defendant's answer, plaintiff not only denied that defendant was an employee of the Board of Railroad Commissioners, but also stated that if defendant were such employee such fact would not, as a matter of law, be a defense to the action and exempt him from liability to the plaintiff.

Appellant states in his argument:

" The plaintiff in no proper way challenged said defenses; the only thing plaintiff did was to file a general denial thereto; said defenses were not challenged by a demurrer, nor by any objections to the evidence, nor by requested instructions, or otherwise.

In fact the case was tried on the theory that said defenses were good in law both by the plaintiff and the trial court."

We cannot concur in appellant's analysis of the record and his contention that the case was tried on the theory that the defense was sufficient. We are of the opinion that the case was tried on the theory that the sufficiency of the defense was an issue in the case raised by the reply. The reply directly challenged the sufficiency of the defense, plaintiff objected to the evidence offered by the appellant tending to show that he was an employee of the commission at the time of the accident on the ground that such fact was immaterial, irrelevant and incompetent under any issue in the case, and requested an instruction to the effect that the fact that defendant was an employee of the commission engaged in a governmental function did not constitute a defense to plaintiff's action. The trial court, in his instruction, recognized that this question was involved in the case and gave Instruction No. 10.

While the function of a reply is not to present questions of law, appellant did not raise the question of waiver of the sufficiency of the defense by failure to assail it by motion or demurrer in the lower court nor did he challenge the method adopted by plaintiff in presenting the law question in his reply.

In appellant's motion for directed verdict, he did not rely on a waiver of the insufficiency of the defense but insisted, under the rule adhered to in Shirkey v. Keokuk County, supra, it was the duty of the court to " direct a verdict in favor of the defendant as a matter of law" . The trial court, in giving Instruction No. 10, apparently refused to follow the Shirkey Case and properly refused to submit the defense to the jury.

Because the case was tried on the theory that plaintiff had challenged the validity of the defense, there was no error in giving the instruction.

II.

Appellant alleges the court erred in overruling his motion for a directed verdict because " only one conclusion could be arrived at from all the evidence in the case, and that is that the defendant was not guilty of any negligence whatsoever, that defendant was confronted with a sudden emergency and did, according to the evidence, the only natural and reasonable thing that any ordinary and reasonable and prudent man would have done under the same circumstances" .

Appellant states: " The evidence conclusively further shows that the deceased was hiding and concealing herself either out and in the culvert or by or in the abutments or wings of this said culvert where she could not be seen by the defendant; and that the deceased suddenly and without any warning and without looking, darted out and jumped in front of defendant's approaching car and that defendant, at the very moment that he saw deceased, slammed on his brakes, and turned to the left in his attempt to avoid the girl and ran off the highway, into the ditch and up to the fence in an attempt to avoid her."

Defendant was driving north on primary highway No. 13 in Clayton County about 4:15 in the afternoon on October 22, 1936. The accident occurred about 25 feet north of a culvert under said highway. About 1516 feet south of the culvert, an east and west road called St. Olaf Road crosses highway No. 13. There is a school house in the south west corner of the intersection. Commencing about 700 feet north of the intersection, there is a slight downgrade for a distance of 816 feet to the box concrete culvert, which is 33 feet from end to end. The opening is 3 feet square. The bottom of the culvert is 6 feet below the pavement. On the east side, 2 concrete wings extend out about 8 feet at an angle of 45 degrees to hold the dirt shoulder. The parapet made by the wings is about 1 1/2 feet lower than the shoulder of the highway. The distance from the end of the north wing of the culvert to the east edge of the shoulder is 6 feet and the shoulder is 6 feet wide; that is, it is 12 feet from the end of the north wing to the pavement.

About 4:00 o'clock in the afternoon of October 22, 1936, a group of school children left the school house for their homes and were walking north on No. 13. There were 4 boys, the oldest being 13 years and the youngest 6 years old, and three girls, the deceased, Lunida Lenth, 10 years old, Mardella Kluth, 13 years old and Ella Henning, aged 7. The girls had preceded the boys and when they reached the culvert were quite a distance ahead of them. At the culvert, the girls, as they had several times done before, walked through the culvert from west to east. Lunida then crossed the road to the west side of the culvert. A little while later, the other two girls followed Lunida across the road. Lunida having again entered the culvert on the west side of the road, Mardella and Ella sat down on the edge of the culvert on the west side of the road to wait for her and the boys. They did not see her again until after she was struck down by defendant's automobile.

Eldean Schlake, a witness for the plaintiff, and the defendant are the only witnesses who testified about what occurred just prior to and at the time of the accident. Schlake, who was 13 years old at the time of the accident, testified substantially as follows:

The witness and the other boys were walking north on the west shoulder. When he first saw Lunida (after she had gone through the culvert the second time) she was coming up the bank on the east side of the road near the north wing of the culvert. At this time the witness testified he was on the west shoulder and about three-fourths of the way from the school house to the culvert, which means he first saw her when he was about 300 feet South of the culvert. When he thus observed her, defendant's car was " quite a ways back" . He next saw her as she started across the parapet and shoulder to the west at a kind of a dog trot and " she didn't look one way or the other, just kept right on going" . As defe...