Marean v. Petersen

• Decision Date: 20 September 1966
• Docket Number: No. 52051,52051
• Citation: 259 Iowa 557,144 N.W.2d 906
• Parties: Elmer A. MAREAN, Administrator of the Estate of Allen Eugene Marean, Deceased, Appellee, v. H. Rand PETERSEN, Administrator of the Estate of Larry Joseph Hoelscher, Deceased, Appellant. Greta L. NELSON, Administrator of the Estate of Freddie Lee Sheeder, Deceased, Appellee, v. H. Rand PETERSEN, Administrator of the Estate of Larry Joseph Hoelscher, Deceased, Appellant.
• Court: Iowa Supreme Court

Page 906

144 N.W.2d 906

259 Iowa 557

Elmer A. MAREAN, Administrator of the Estate of Allen Eugene Marean, Deceased, Appellee, v. H. Rand PETERSEN, Administrator of the Estate of Larry Joseph Hoelscher, Deceased, Appellant.

Greta L. NELSON, Administrator of the Estate of Freddie Lee Sheeder, Deceased, Appellee, v. H. Rand PETERSEN, Administrator of the Estate of Larry Joseph Hoelscher, Deceased, Appellant.

No. 52051.

Supreme Court of Iowa.

Sept. 20, 1966.

Connolly & Connolly, Council Bluffs, and Fred Louis, Jr., Harlan, for appellant.

Taylor & Taylor, Guthrie Center, for appellees.

RAWLINGS, Justice.

Plaintiffs as administrators of the estates of their respective decedents filed similar petitions, each claiming death damages resulting from a highway accident involving two vehicles, one an automobile owned and occupied by defendant's decedent in which plaintiffs' decedents were also riding, the other an opposite direction truck. The two actions were consolidated for trial to the court, judgment was granted each plaintiff, and defendant appeals both cases.

Count one of both petitions alleged each plaintiff's decedent was a passenger in an automobile owned and operated by defendant's decedent who was negligent in that he failed to yield one-half the roadway; drove at an excessive speed; failed to have his car under control; failed to stop in the assured clear distance ahead; improperly passed a same direction vehicle; failed to keep a proper lookout, this negligence being the proximate cause of an accident which resulted in the death of each plaintiff's decedent, and absence of contributory negligence on their part.

Count two was in substantially the same form as count one but asserted each plaintiff's decedent was a guest and the automobile in which they were riding was operated recklessly by defendant's decedent.

Defendant's answers denied all material allegations in the petitions relating to liability, and by amendment alleged each plaintiff's decedent assumed the danger of riding with defendant's decedent.

For brevity and convenience plaintiffs' decedents, Allen Eugene Marean and Freddie Lee Sheeder, will sometimes hereafter be referred to respectively as plaintiff Marean and plaintiff Sheeder. Defendant's decedent, Larry Joseph Hoelscher, will sometimes hereafter be referred to as defendant Hoelscher.

All of these parties were young men. They lived in or near Guthrie Center but were employed by Western Iowa Pork Company at Harlan. Each drove his own automobile every third day, providing transportation to and from work for the other two.

The three left work September 19, 1963, in a car owned by defendant Hoelscher, but about five and one-half miles east of Harlan an accident occurred. All occupants of the car died at time of the mishap. The truck driver expired a short time later.

Defendant contends the trial court erred in finding: (1) defendant Hoelscher was driving his automobile at time of the fatal accident; (2) plaintiffs Marean and Sheeder were nongratuitous passengers; (3) they did not assume the risk of a known racing trip to Guthrie Center; (4) plaintiffs' decedents were free from contributory negligence; and (5) the estate of plaintiff Sheeder was entitled to $11,000 damages.

I. These being actions at law they are reviewable only on errors assigned. The trial court's findings of fact have the standing of a special verdict equivalent to that of a jury, and if supported by substantial evidence will not be disturbed. Also we view the evidence presented in that light most favorable to the judgment of the trial court. Rules 344(a)(3) and 344(f)(1), R.C.P.; McCune v. Muenich, 255 Iowa 755, 757, 124 N.W.2d 130; and Associates Discount Corp. v. Held, 255 Iowa 680, 683, 123 N.W.2d 869.

II. Defendant submits the trial court erred in finding defendant Hoelscher was driving his car at time of the accident and was therefore in error in finding plaintiffs' decedents were free from contributory negligence.

Here he apparently contends the showing made was insufficient to prove defendant Hoelscher was operating his automobile when the accident occurred, one of the other two in the vehicle could have been driving, and upon this premise freedom from contributory negligence could not be and was not established.

The fallacy of this argument stems in part from the fact it presupposes absence of proof defendant Hoelscher was driving his car at time of the fatal mishap.

No one actually saw the driver or other occupants of the subject vehicle from time of leaving the Western Iowa Pork premises in Harlan, to the moment of the accident.

One witness said plaintiff Sheeder came out of the plant, got into the Hoelscher car and drove it down to the driveway. But on cross-examination he stated Sheeder evidently did this, and that he saw none of the three after they came out.

Mrs. Arnold Anderson, a same direction driver of another automobile, stated the death car passed her just before the accident but she had only a fleeting glimpse of the occupants, and did not know the identity of the driver or others in the car, or where they were seated.

A highway patrolman, with 13 years experience in that position, arrived on the scene soon after the accident but before the vehicles involved or the bodies had been moved. It was his belief the Hoelscher car, traveling at least 90 miles an hour, hit an oncoming truck head-on and went under it, shearing off the top of the automobile.

He said there was a body in the front seat, the lower half resting under the wheel, the upper portion stretched to the right, the legs being under the clutch and brake pedals. He also stated this was the least damaged body of the three, and that the left or driver's side of the automobile was not as badly damaged as were other portions of the car. This was the body of defendant Hoelscher. Over defendant's objection he expressed the opinion defendant Hoelscher was operating his vehicle at time of the collision.

This same witness states the Sheeder boy's body, partially decapitated, was found in a ditch to the east and near the front of the car. He then expressed an opinion, subject to objection, plaintiff Sheeder was riding in the right front seat when the mishap occurred.

This officer also saw the lower half of plaintiff Marean's body in the rear seat, the upper portion being found on the edge of the highway approximately half way between the car and the collision involved truck. Over objection he concluded plaintiff Marean had been riding in the rear seat of the subject vehicle.

The sheriff, having served in that office about 16 years, gave substantially the same testimony and at one point absent any objection, voiced the conclusion defendant Hoelscher was operating his automobile at time of the crash.

In the case of Grismore v. Consolidated Products Co., 232 Iowa 328, 342, 5 N.W.2d 646, we said and have since repeatedly held, receipt of opinion evidence, lay or expert, and the extent to which it will be received in any case, are matters resting largely in the administrative discretion of the trial court, and we are reluctant to interfere with such discretion unless it has been manifestly abused to the prejudice of the complaining party.

Then in Nicholson v. City of Des Moines, 246 Iowa 318, 327--328, 67 N.W.2d 533, this court held that generally a nonexpert witness may not state his opinions, but may do so if he had special opportunities to observe, and is qualified to draw proper inferences from available facts; special experience may enable him to draw a more accurate inference than the trier of the facts; considerable discretion in admitting such testimony is vested in the trial court; and even slight qualifications will suffice, the absence of strong qualifications going to the weight rather than admissibility of the evidence. See also Smith v. Cedar Rapids Country Club, 255 Iowa 1199, 1210, 124 N.W.2d 557; Long v. Gilchrist, 251 Iowa 1294, 1297, 105 N.W.2d 82; and 20 Am.Jur., Evidence, sections 763--786, pages 633--661.

However, it is not necessary to here determine admissibility of the patrolman's opinions. Admission of the sheriff's testimony, without objection, eliminated prejudice, if any, in admission of any opinion by the patrolman. Bohnsack v. Driftmier, 243 Iowa 383, 396, 52 N.W.2d 79, and State v. Olson, 249 Iowa 536, 560, 86 N.W.2d 214.

III. In any event identity of the driver being the focal point of our present problem is otherwise established by the inference sometimes referred to as a rebuttable presumption, that an owner-occupant of a vehicle involved in an accident was being operated by him where there is no direct testimony as to identity of the driver. Sections 321.1(36) and 321.493, Code, 1962; Claussen v. Johnson's Estate, 224 Iowa 990, 992, 278 N.W. 297; Lukehart v. Gleason, 8 Cir., 207 F.2d 529, 531; Sprader v. Mueller, 265 Minn. 111, 121 N.W.2d 176, 177; and 8 Am.Jur.2d, Automobiles and Highway Traffic, section 910, page 457. See also Annos. 32 A.L.R.2d 988.

Defendant Hoelscher owned the subject automobile, he was an occupant, and after the accident his body was in the front seat of the car in a location normally occupied by the driver, with the legs under and near the floor controls.

We are persuaded the factual situation in this case serves to substantiate the inference or rebuttable presumption defendant Hoelscher was driving his automobile when the fatal accident occurred. In support hereof see Cole v. Swagler, 308 N.Y. 325, 125 N.E.2d 592, 593--595; Kimberly v. Reed, 79 Ga.App. 137, 53 S.E.2d 208, 214; and Shaughnessy v. Morrison, 116 Conn. 661, 165 A. 553, 554.

The trial court so found and there is to us no cause to disagree. See 61 C.J.S. Motor Vehicles § 523, page 418.

IV. The evidence also discloses plaintiff Sheeder had once before been employed by Western Kowa Pork Company but had quit and when called to return agreed to do so if two or three others living in the Guthrie Center...