McBride v. Dexter

• Decision Date: 14 October 1958
• Docket Number: No. 49501,49501
• Parties: Leslie F. McBRIDE and Leslie F. McBride, next friend of John McBride, Appellants, v. George E. DEXTER, Sr., and George E. Dexter, Sr., as Administrator of the Estate of George E. Dexter, Jr., Appellees.
• Court: Iowa Supreme Court

Page 443

92 N.W.2d 443

250 Iowa 7

Leslie F. McBRIDE and Leslie F. McBride, next friend of John McBride, Appellants, v. George E. DEXTER, Sr., and George E. Dexter, Sr., as Administrator of the Estate of George E. Dexter, Jr., Appellees.

No. 49501.

Supreme Court of Iowa.

Oct. 14, 1958.

Waldo M. Wissler, Davenport, for appellants.

McDonald & McCracken, Davenport, and Walter E. Kroeger, Davenport, for appellees.

THOMPSON, Justice.

This case presents an appeal from a verdict for the defendants returned by direction of the court at the close of plaintiff's evidence. The issues revolve largely around Code, Section 321.494, I.C.A., commonly known as the Iowa Guest Statute. Because of its importance in the case we set it out herewith:

'321.494. Guest statute. The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire unless damage is caused as a result of the driver of said motor vehicle being under the influence of intoxicating liquor or because of the reckless operation by him of such motor vehicle.'

On the evening of November 26, 1955, George E. Dexter, Jr., was driving a Mercury automobile, in good condition, with the consent of his father, the defendant George E. Dexter, Sr. A few days before the date named the rear fender skirts had been stolen from the car while it was parked in the town of Walcott, Iowa. Walcott is in Scott county a few miles from Bettendorf, in the same county. John McBride, who brings the action through his father as next friend, was 17 years of age at the time. He will be hereafter referred to as the plaintiff. All of the boys involved in the accident were students at the Bettendorf High School.

On the evening in question the plaintiff and James Ritter, also 17 years old, were at a skating rink in Bettendorf when George E. Dexter, Jr., drove up with his father's car. With him was Roger Iossi, aged fifteen. During the week Dexter had told Ritter of the theft of the fender skirts and asked Ritter to go with him to Walcott to look for them, and Ritter had agreed, but no time was fixed. At the skating rink Dexter again asked Ritter if he wished to go to look for the skirts, and Ritter again consented. Dexter, Ritter, Iossi, the plaintiff McBride, and two other boys, Jack Krieter and one Kapinski, then entered the automobile and proceeded to Walcott. Kapinski did not start the return trip, on which the accident occurred, with them, and was not called as a witness in the case.

Count I of plaintiff's petition alleges that McBride accompanied Dexter for the purpose of assisting him in looking for and endeavoring to recover the skirts. This, it is urged, made him a passenger for the definite, tangible benefit of the operator, and so removed his status from that of a guest or passenger not for hire within the meaning of Section 321.494, supra. See Knutson v. Lurie, 217 Iowa 192, 251 N.W. 147, a leading case on this point; Thuente v. Hart Motors, 234 Iowa 1294, 15 N.W.2d 622; and Stenberg v. Buckley, 245 Iowa 622, 61 N.W.2d 452. These, and other cases cited by the plaintiff, deal with the question of when a passenger is not a guest, but is being transported either for the joint and mutual benefit of the driver and rider or for the benefit of the driver alone. If plaintiff's position at this point were sound, he would be freed of the necessity of proving recklessness on the part of the driver of the car; proof of negligence would entitle him to the consideration of the jury.

But the weakness of his case at this point is that there is no evidence that the plaintiff went on the trip for the purpose of aiding Dexter in searching for his fender skirts. No one so testifies. The plaintiff himself remembered the arrival of Dexter and Iossi and the automobile at Bettendorf; he talked with them but did not remember the subject of the conversation. He remembered being in Walcott, and that the car ran off the highway on the trip home.

Roger Iossi said that he started out with Dexter that evening with the intent that they would go to Walcott to look for the skirts. They talked with Ritter and the plaintiff, and Dexter said he was going to Walcott to search for the skirts. Ritter and McBride asked to go along. When they got to Walcott they drove around the block twice looking for the skirts, then entered a cafe, ate and drank some soft drinks, and started back for Davenport. There is no evidence that McBride would have recognized the skirts if he had seen them. Jack Kreiter, another high school student who made the trip, did not remember any special purpose of the trip, and thought they were just going for a ride. Ritter's testimony is that Dexter asked him to help look for the skirts; he does not say McBride was requested, or agreed to help.

This is the total of the evidence bearing on the question, and it fails to show anything for the jury's determination upon the claim that McBride was on the trip for the benefit of Dexter. We are mindful of the rule that in considering the correctness of a ruling which directs a peremptory verdict for the defendant the evidence must be taken in the aspect most favorable to plaintiff which it will reasonably bear. But there is nothing from which it could reasonably be deduced that any definite and tangible benefit to Dexter was bargained for or expected from McBride's presence in the car.

In fact, the plaintiff says in his brief and argument that 'plaintiff's main reliance is upon the point of recklessness shown by the evidence; * * *.' While this is not an entire abandonment of the issue of benefit to the driver of the car pleaded in Count I, it does show some lack of confidence in the position there taken, which doubt we share in a more positive form.

One further question concerning the evidence of benefit to the driver of the car involves a somewhat unique contention by the plaintiff as to the duty of the trial court to call witnesses as its own so that they may be cross-examined and possibly impeached. We shall discuss this in Division II following.

II. Error is assigned upon the denial of a request by the plaintiff that the court call Roger Iossi and Jack Kreiter as its own witnesses. This request was made before they were called by the plaintiff, and it is the contention of the plaintiff that if the court had done so the plaintiff would not have been compelled to vouch for their testimony as he did by calling them himself; and further, that if the court had called them he could have then cross-examined them and so possibly have elicited evidence that he, the plaintiff, accompanied Dexter on the trip for the purpose of aiding in the search for the stolen fender skirts. The court refused to call these witnesses as its own, and the plaintiff thinks prejudicial error resulted. The plaintiff then called them; but under his examination nothing was shown tending to prove that McBride made the trip to help in the search; in other words, that he made the trip for a definite and tangible benefit to the driver of the automobile.

The contention is a novel one in that the claim is made not only that the court had the right in the exercise of its fair discretion to call witnesses as its own, but that it was error not to do so when requested by one of the parties. No authority is cited which so holds, nor have we discovered any. There are many cases in which it has been held not to be error for the court to ask questions of witnesses called by one of the parties, and many others holding that it is not an abuse of discretion for the court, upon its own motion or that of a party, to call witnesses neither of the litigants saw fit to offer. Many of these cases involve situations in which the prosecution asked the court to call witnesses who were thought to have knowledge of the facts but who were thought by the state to be hostile or of doubtful reliability or veracity; and in which the court acceded to the request. In this category are Litsinger v. United States, 7 Cir., 44 F.2d 45, 47, People v. Rotello, 339 Ill. 448, 171 N.E. 540, 541, 542, and United States v. Lutwak, 7 Cir., 195 F.2d 748, 754. There are also some civil cases which announce the doctrine that the trial court has a considerable discretion in calling witnesses. Merchants Bank v. Goodfellow, 44 Utah 349, 140 P. 759; Dunlap v. Seattle National Bank, 93 Wash. 568, 161 P. 364. In Chalmette Petroleum Corporation v. Chalmette Oil Distributing Company, 5 Cir., 143 F.2d 826, 828, cited by the plaintiff, the appellate court, in discussing the power and duty of the court to call witnesses who might be thought to be able to throw some light on the questions being litigated, said: 'We have sanctioned this in a criminal trial, and see no reason why it may not be done in a case like this if the judge, in his discretion, thinks it wise and proper.' (Italics supplied.) Wigmore on Evidence, Third Edition, Vol. IX, Sec. 2484, says of the court's power to call witnesses: 'That he has no burden or duty of doing so is plain in the law.'

The unanimous current of authority is...