Loudon v. Hill

• Decision Date: 19 December 1979
• Docket Number: No. 62765,62765
• Citation: 286 N.W.2d 189
• Parties: Vernon L. LOUDON, Appellant, v. Morey J. HILL, Appellee.
• Court: Iowa Supreme Court

Page 189

286 N.W.2d 189

Vernon L. LOUDON, Appellant, v. Morey J. HILL, Appellee.

No. 62765.

Supreme Court of Iowa.

Dec. 19, 1979.

John R. Ward and Philip C. Vonderhaar of Hedberg, Brick, Tan, Pratt & Ward, Des Moines, for appellant.

John B. Grier of Cartwright, Druker & Ryden, Marshalltown, for appellee.

Considered by REYNOLDSON, C. J., and LeGRAND, McCORMICK, ALLBEE and LARSON, JJ.

McCORMICK, Justice.

This appeal presents a jurisdictional problem and questions whether the evidence was sufficient for the jury to find that plaintiff was not a guest in defendant's automobile and that defendant was negligent. We hold that we have jurisdiction of the appeal, that the trial court erred in granting defendant's motion for judgment notwithstanding a jury verdict for plaintiff, and that the court was correct in overruling defendant's alternative motion for a new trial. Therefore we reverse in part and affirm in part.

I. The jurisdictional problem. We must address issues of subject matter jurisdiction when they appear, even though, as in this case, the issues have not been raised by the parties. Qualley v. Chrysler Credit Corp., 261 N.W. 466, 468 (Iowa 1978). Following a jury verdict for plaintiff, defendant filed timely alternative motions for judgment notwithstanding the verdict and for new trial. On November 15, 1978, the trial court sustained the motion for judgment n. o. v. but declined to rule on the motion for new trial, saying: "In view of the ruling of the Court on Defendant's Motion for Judgment Notwithstanding the Verdict, no ruling is required on Defendant's alternative Motion for a New Trial." The clerk entered judgment against plaintiff pursuant to the court's order.

On November 27, 1978, plaintiff filed a notice of appeal addressed to the adverse judgment. On January 19, 1979, defendant applied to this court for limited remand of the case to permit the trial court to rule on the motion for new trial, and on February 17, 1979, the case was remanded for that purpose. On February 21, 1979, the trial court overruled the motion for new trial, and on March 19, 1979, defendant filed a notice of appeal from that ruling.

The jurisdictional problem concerns the timeliness of these procedures. The problem arises because of the trial court's failure to rule on defendant's motion for new trial at the time the motion for judgment n. o. v. was granted. This procedure was contrary to Iowa R.Civ.P. 248(a), which provides:

If the motion for judgment notwithstanding the verdict provided for in rule 243 is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless otherwise ordered by the supreme court. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the supreme court.

In Recker v. Gustafson, 271 N.W.2d 738 (Iowa 1978), defendants filed a notice of appeal while a motion of plaintiffs under rule 179(b) for enlargement of the decree was still pending. We held that we were without jurisdiction of the appeal because the decree was not final so long as the rule 179(b) motion was not ruled on. Defendants' appeal in that case was therefore premature. In the present case, the court had not ruled on defendant's motion for new trial when plaintiff's notice of appeal was filed. We must decide whether the appeal was premature as in Recker.

We think the situation in this case is materially different. Here the trial court ruled on a post-trial motion for judgment n. o. v. which was dispositive of the merits of the case. The only loose end was the failure of the court to comply with rule 248(a) by conditionally ruling on the motion for new trial. Unlike the situation in Recker, the ruling could not affect the judgment. The conditional ruling would have significance only if the judgment were reversed on appeal. E. g., Paulsen v. Des Moines Union Railway, 262 N.W.2d 592, 593-94 (Iowa 1978).

Moreover, the test of finality is whether the determination is dispositive of the case, and the intention of the trial court is relevant on that issue. Flynn v. Lucas County Memorial Hospital, 203 N.W.2d 613, 614-15 (Iowa 1973). Here the trial court plainly intended to dispose of the case by granting the motion for judgment n. o. v. and holding the motion for new trial to be moot. The court's failure to comply with rule 248(a) does not alter the finality of the disposition. Therefore this case is distinguishable from Recker, and plaintiff's appeal was not premature.

It was appropriate for defendant to seek a conditional ruling on the motion for new trial in keeping with rule 248(a). The limited remand procedure of Iowa R.App.P. 12(f) was correctly utilized to obtain the ruling. However, it was unnecessary for defendant to appeal from the adverse ruling on that motion. As provided in rule 248(a), defendant is authorized to assert error in that ruling in resisting plaintiff's appeal. A cross-appeal is not required.

Rule 248(a) is patterned on Fed.R.Civ.P. 50(c), which has the same purpose and effect. See Advisory Committee Note to Rule 50, 31 F.R.D. 645, 646 (1962); C. Wright & A. Miller, Federal Practice and Procedure § 2540, at 620 (1971). We need not decide whether defendant could have treated the trial court's original refusal to rule as an adverse ruling on the motion. Cf. State v. Hephner, 161 N.W.2d 714, 717 (Iowa 1968) (holding that a request or demand for ruling followed by a refusal or failure to rule is necessary in order to preserve error for appeal when a ruling has not been obtained). Because it was not necessary for defendant to cross-appeal, we also need not decide whether his notice of appeal was timely under Iowa R.App.P. 5(a).

Thus we have jurisdiction of plaintiff's appeal and defendant's assertion of error in the trial court's conditional ruling denying a new trial.

II. The judgment n. o. v. Plaintiff alleged in his petition that he was injured as a proximate cause of defendant's negligence while riding in defendant's automobile in the evening of February 20, 1976. He averred he was not a guest in the vehicle within the meaning of the guest statute, § 321.494, The Code. By its verdict, the jury found in his favor on those issues. In sustaining defendant's motion for judgment notwithstanding the verdict, the trial court held that plaintiff failed to adduce sufficient evidence to permit the jury to find he was not a guest in defendant's automobile. Plaintiff contends this ruling was wrong. In resolving the question, we must review the evidence and the applicable law. We view the evidence in its light most favorable to plaintiff, the party against whom judgment n. o. v. was entered. See Winter v. Honeggers' & Co., 215 N.W.2d 316, 321 (Iowa 1974).

Plaintiff Vernon L. Loudon, defendant Morey J. Hill, and Jeff Abel were students at the Eagle Grove campus of Iowa Central Community College during the 1975-76 school year. Plaintiff and Abel were from Creston and roomed together at school. Defendant was from Perry. The three were on the wrestling team and were friends. Plaintiff and Abel took turns keeping cars at school and rode to Creston and back together. Defendant owned a 1962 Mercury automobile which he had with him at school.

On February 20, 1976, plaintiff and Abel intended to go to Creston for the weekend as soon as Abel returned with plaintiff's car from wrestling practice in Fort Dodge. The weather forecast was not good. Defendant wished to go to a high school wrestling meet in Atlantic with his parents but, after calling his father at about 5:00 p. m., decided not to do so because of threatening weather. However, he subsequently decided he would go as far as his home in Perry if plaintiff and Abel would travel that far with him on their way to Creston. He wanted the help of the others if he should encounter trouble either with his automobile or the weather. Defendant and plaintiff agreed that plaintiff would drive defendant's car and follow Abel who would drive plaintiff's car.

Abel subsequently arrived in Eagle Grove. Defendant and plaintiff informed him of their plans, and Abel agreed to drive the lead vehicle. The three agreed that the lights on the second vehicle should be blinked as a signal to stop if that became necessary. The trip commenced, with Abel driving plaintiff's car and plaintiff driving defendant's car. Later, after plaintiff missed a turn west of Stratford, defendant took over the driving of his car. He passed the car driven by Abel and subsequently, in the midst of a snowstorm, drove the right front of the vehicle into a bridge abutment, causing the injuries for which plaintiff brought this suit.

At trial plaintiff testified he remembered nothing from approximately one week before the accident to one month afterward. Abel heard no discussion relating to plaintiff's purpose in being in defendant's car. Called as an adverse witness by plaintiff, defendant testified plaintiff wanted to drive his car because it had a four-speed transmission. Otherwise defendant confirmed the fact the group was traveling together because of defendant's concern about the weather. He acknowledged he would not have made the trip alone.

The case was submitted to the jury under an instruction on the guest statute issue requiring the jury to find that "a substantial factor in motivating the presence of plaintiff in defendant's car was . . . the attainment of some definite tangible...