Looney v. Parker

• Decision Date: 14 April 1930
• Docket Number: 40134
• Citation: 230 N.W. 570,210 Iowa 85
• Parties: RALPH LOONEY, Appellee, v. MRS. G. E. PARKER et al., Appellants
• Court: Iowa Supreme Court

230 N.W. 570

210 Iowa 85

RALPH LOONEY, Appellee, v. MRS. G. E. PARKER et al., Appellants

No. 40134

Supreme Court of Iowa, Des Moines

April 14, 1930

Appeal from Cedar District Court.--JOHN T. MOFFIT, Judge.

Action for damages resulting from a rear-end collision between an automobile owned and driven by plaintiff (the forward car) and an automobile owned by defendant Mrs. G. E. Parker driven by defendant Carl Hagen. Verdict and judgment for plaintiff. Defendants appeal.

Reversed.

Donnelly Lynch, Anderson & Lynch, for appellants.

J. C. France, W. C. Boland, and Maurice P. Cahill, for appellee.

MORLING, C. J. STEVENS, DE GRAFF, ALBERT, and WAGNER, JJ., concur.

OPINION

MORLING, C. J.

I. Plaintiff's wife was permitted to testify, over proper objection, that plaintiff was not able to do any work for two months following the accident. This testimony, though in the nature of a conclusion, was permissible. Stilson v. Ellis, 208 Iowa 1157, 225 N.W. 346; Stone v. Moore, 83 Iowa 186, 188, 49 N.W. 76; Tyler v. Moore, 111 Ore. 499 (226 P. 443); Koch v. Lynch, 247 Mass. 459 (141 N.E. 677).

II. An automobile salesman testified to the value of plaintiff's car before and after the accident. He then testified that the purpose of a publication known as "The Red Book" was "to have the loan value of financing companies before the dealer. * * * The prices listed in the Red Book are what actually can be loaned on that automobile in the sale of the automobile, which means 60 per cent of the value of the automobile, as, on the sale of the car, there is required a 40 per cent down payment." While this testimony was inadmissible (Crowley v. E. Homan Co., [N. J.], 130 A. 372), on this record it is without prejudice.

III. Plaintiff testified that, "immediately after the accident," defendant Hagen, the driver, said that "at the last minute, he stepped on the accelerator, instead of putting on the brakes." His wife testified that Hagen said:

"I am awful sorry; I was going fast, and did not see your car until I was too close, then I lost my head, and stepped on the accelerator, instead of the brakes."

Objections to this evidence were sustained as to defendant Parker, but overruled as to Hagen. At the conclusion of plaintiff's testimony, defendant Parker moved to strike the testimony, on the ground that she was concededly the owner of the car, and defendant Hagen was concededly operating it with her permission; and to permit the jury to consider the admissions would result in their being considered in determining the liability of the owner, Parker. The motion was overruled. The court was requested to charge that, as the verdict must be either for or against both defendants, the testimony could not be considered. The instruction was refused. The court instructed, in substance, that, if the jury found that the collision was caused by the negligence of Hagen, and plaintiff was not guilty of contributory negligence, plaintiff would be entitled to a verdict. The court submitted but two forms of verdict: one finding for the plaintiff, and one for the defendants. The instructions did not distinguish between the two defendants, or inform the jury that, in determining whether the owner was liable, the driver's declarations could not be considered. Although by statute (Code, 1927, Section 5026), the owner of a car driven by his consent is liable for the negligence of the driver, the driver's admissions, unless brought within some exception to the hearsay rule, are not admissible against the owner. Wilkinson v. Queal Lbr. Co., 208 Iowa 933, 226 N.W. 43; Cooley v. Killingsworth, 209 Iowa 646, 228 N.W. 880. Plaintiff contends that Hagen's statements were a part of the res gestae. The court, however, in ruling upon the objections to them, did not admit them as against Mrs. Parker. In form, Hagen's statements were narrative. The evidence is not such as to raise an inference that they were spontaneous expressions, made in the course of a presently existing, occurring, or coinciding affair, explanatory thereof. It cannot be said, on the record, that Hagen's statements were a part of the res gestae. Droullard v. Rudolph, 207 Iowa 367, 223 N.W. 100. While, on the objections to the offer of the evidence, the court formally ruled that the statements were not admissible as against Mrs. Parker, the instructions were, notwithstanding, such that the evidence and admissions operated against her. Plaintiff does not urge that it was defendants' theory of the case that "the verdict must be either for or against both defendants." It seems to have been assumed that such was the theory of the plaintiff, adopted by the court. Plaintiff argues:

"The admissions objected to by appellants were properly admissible as against the defendant Hagen, and conclusively established his negligence. Therefore, the liability of the defendant Parker existed as matter of course. * * * The admissions objected to being properly admissible against the defendant Hagen, they were, therefore, properly admissible against the defendant Parker."

But as has been seen, we have decided this theory to be untenable.

IV. The court was requested to charge that, if the jury found plaintiff entitled...