Lukehart v. Gleason

• Decision Date: 02 November 1953
• Docket Number: No. 14808.,14808.
• Parties: LUKEHART v. GLEASON.
• Court: U.S. Court of Appeals — Eighth Circuit

207 F.2d 529 (1953)

LUKEHART v. GLEASON.

No. 14808.

United States Court of Appeals Eighth Circuit.

November 2, 1953.

J. D. Robertson, Marshalltown, Iowa, for appellant.

Ralph W. Gearhart, Cedar Rapids, Iowa (Caryl W. Garberson, Harry E. Wilmarth, Cedar Rapids, Iowa, Herschel G. Langdon, Des Moines, Iowa, Elliott, Shuttleworth & Ingersoll, Cedar Rapids, Iowa, Herrick & Langdon, Des Moines, Iowa, of counsel, on the brief), for appellee.

Before JOHNSEN and COLLET, Circuit Judges, and NORDBYE, District Judge.

COLLET, Circuit Judge.

Appellee, whom we will refer to as the plaintiff, recovered a judgment for damages to his truck caused by a collision with defendant's automobile about 2:45 a. m., December 2, 1951.

Norman Woodsmall and defendant lived at Marshalltown, Iowa, and had been "keeping company", as she expressed it, for several months prior to December 2, 1951. Defendant owned a 1951 Chevrolet car. Woodsmall did not own a car. Defendant was employed as a nurse at a hospital in Marshalltown, Iowa. Woodsmall had been unemployed until about a week prior to December 2, 1951. During that week he was working for a furnace company in Marshalltown. Defendant lived with her two minor sons and a housekeeper about a mile and a half from where Woodsmall roomed, and about three miles from the hospital where she worked. The two frequently went places together in defendant's car. Woodsmall usually drove the car. Defendant's working hours at the hospital were from 11 p. m. until 7 a. m. During the week preceding December 2, 1951, on three occasions Woodsmall had taken defendant to the hospital at 11 p. m. and called for her at 7 a. m. in the car. Although defendant testified that Woodsmall was supposed to take the car to defendant's garage at her home, she conceded that he probably had possession of the car overnight on these and other similar occasions. Since it would have been necessary for Woodsmall to walk a mile and one-half, after 11 p. m., to his home from her garage, and back the same distance before 7 a. m. to get the car to pick up defendant at the hospital, and there is no evidence that he did so, the inference may be drawn that he had been in the habit of frequently keeping the car overnight.

On December 1, 1951, Woodsmall called for defendant at the hospital at 7 a. m. They went to her home and had breakfast. They stayed there for a time and then went shopping, Woodsmall accompanying defendant on all her calls except to a dress shop. They then went back to her home and had dinner. About the middle of the afternoon they went back downtown and were seen together at several beer taverns. During the afternoon, Woodsmall and four other men planned a trip to a night club that night. There is no direct evidence that defendant knew of the plan, but she met two of those who were to go and was with Woodsmall or close by during the afternoon. About 3:30 or 4 p. m. one Raymond L. Politz talked to them at a tavern and saw them drinking beer. At this time, while Politz was there, Woodsmall observed that he hesitated or did not like the idea of driving defendant's car, whereupon, according to Politz, defendant said that Woodsmall could drive her car any time he wanted to and took the car keys out of her purse and gave them to him. This incident is not denied by defendant, but she merely states that she did not recall making that statement, and further, that she did not remember taking the car keys out of her purse and handing them to Woodsmall, as related by Politz. Later, Woodsmall and defendant went back to defendant's home for supper, and about 8 p. m. they went back uptown and after driving around for a time went to a beer tavern. There they had a bottle of beer and ate a lunch. Defendant had to be at work at 11 p. m., and shortly before that time Woodsmall took defendant to the hospital. She says that he was to go back and finish his lunch at the beer tavern and then take the car to the garage. Instead, the car was driven approximately 24 miles east to the night club. It was observed parked there after midnight. Woodsmall was not seen at the night club by anyone who knew him, but at least two of those who had planned the trip that afternoon were observed there....