McKirchy v. Ness

• Court: Iowa Supreme Court
• Writing for the Court: MOORE; All Justices concur except HAYS
• Citation: McKirchy v. Ness, 128 N.W.2d 910, 256 Iowa 744 (Iowa 1964)
• Decision Date: 09 June 1964
• Docket Number: No. 51357,51357
• Parties: Orrin J. McKIRCHY, Individually and as natural parent and next friend of Mary Pat McKirchy, Appellee, v. Gilbert NESS and Clyde Sanborn, Appellants.

Page 910

128 N.W.2d 910

256 Iowa 744

Orrin J. McKIRCHY, Individually and as natural parent and next friend of Mary Pat McKirchy, Appellee, v. Gilbert NESS and Clyde Sanborn, Appellants.

No. 51357.

Supreme Court of Iowa.

June 9, 1964.

Anderson & Pelzer, Estherville, for appellant Gilbert Ness.

Linnan, Lynch & Straub, Algona, Irish & Skinner, Altoona, and Jones & Hoffmann, Des Moines, for appellant Clyde Sandborn.

James, Greer & Nelson, Spencer, for appellee.

MOORE, Justice.

This is an action for damages brought by Orrin J. McKirchy, as father and next friend of Mary Pat McKirchy, both for himself for hospital and medical expenses, and on behalf of his daughter for personal injuries arising out of a collision October 14, 1961, a mile west of Estherville on highway 9 between the automobile in which Mary Pat was riding and a truck owned by defendant, Clyde Sanborn, and operated by defendant, Gilbert Ness.

A jury not having been requested, the cause was tried to the court resulting in judgment against both defendants in favor of Orrin J. McKirchy for $7,347.95 and Mary Pat for $45,000. Both defendants have appealed

Sanborn in his brief asserts the trial court erred in finding (1) his truck was being driven with his consent by Ness, (2) Ness was guilty of negligence which was a proximate cause of the collision, and (3) Mary Pat free from contributory negligence. His fourth assignment of error is the amount allowed Mary Pat is excessive.

Ness has joined in the Sanborn brief but only in the last three assigned errors.

Defendants concede if Mary Pat is entitled to recover her father is entitled to recover for hospital and medical expenses resulting from her injuries. For clarity we therefore refer to Mary Pat as plaintiff and to defendants by their last names.

No authorities need be cited to support the proposition that findings of fact by the trial court in this law action are binding upon us if supported by substantial evidence. See rule 344(f), par. 1, R.C.P., 58 I.C.A. As to the first three assigned errors the question presented is whether as a matter of law the evidence fails to create a fact question for the trier of the fact.

I. Plaintiff's petition pleads the necessary elements of a negligence case and alleges Ness was driving Sanborn's truck with his consent. Plaintiff claims Sanborn is therefore liable as Code section 321.493, I.C.A. provides:

'Liability for damages. In all cases where damage is done by any notor vehicle by reason of negligence of the driver, and driven with the consent of the owner, the owner of the motor vehicle shall be liable for such damage. * * *'

Sanborn's answer denies plaintiff's allegation of consent. Ness' original answer, which was allowed to stand until the close of all the evidence, admits plaintiff's allegation of consent. The trial court after the evidence was closed permitted Ness to change his answer to a denial of consent.

We have frequently said the defense of nonconsent is one which can be easily made, with little probability it can be met with direct refutation. It is not necessary plaintiff adduce such direct testimony. When ownership of the motor vehicle is admitted, as it is here, a prima facie case is made on this issue by plaintiff, or as it is sometimes expressed an inference, or a presumption is created that the vehicle was being operated with consent of the owner, and there must be sufficient showing to the contrary if the owner would avoid that finding. Plaintiff may aid this inference of law by direct evidence and by proof of facts and circumstances from which inferences may be drawn. As we have said, this inference is not a strong one, and it in no way changes the burden of proof. The owner may oppose the inference by such admissible testimony as may be available to him. But such testimony, though positive and direct, is not necessarily conclusive. It may be weakened or rebutted by facts and circumstances, or by its own inherent weakness or unreasonable character. The weight of the testimony and credibility of the witnesses depend upon facts and conditions as shown by the record in each case. This particular issue, as it comes before the courts, is one which the average jury is peculiarly well fitted to pass upon and arrive at a correct conclusion. Our earlier cases which consider these matters are ably discussed and well summarized in Bridges v. Welzien, 231 Iowa 6, 300 N.W. 659. See also Anderson v. Lehner, 243 Iowa 851, 52 N.W.2d 513; Harms v. Ridgeway, 245 Iowa 810, 64 N.W.2d 286.

In the Bridges case we recognized there are cases where it is the duty of the trial court to direct the verdict and we cited many cases where we have held consent had not been established. We also cited at least an equal number of cases where we have held the issue of consent was for the trier of the fact.

When, as here, the issue of consent is tendered by pleading and proof the issue is for the trier of the fact unless the defendant's evidence conclusively rebuts the inference of consent. As stated in Curry v. Bickley, 196 Iowa 827, 832, 195 N.W. 617, 619: '* * * the inference that a car is being operated at a given time by the owner, or with his consent, does not require that every case shall go to the jury, where the undisputed and uncontroverted evidence establishes the facts so conclusively that the inference is overcome.'

Sanborn contends the proof here conclusively overcomes the inference of consent and therefore the trial court's finding of consent is not supported by substantial evidence. This leads us to the evidence submitted on this issue.

From 1946 Sanborn owned and operated a furniture store in Estherville. During the period from 1959 through 1961 he was assisted by his wife and had two regular full time employees (Pullen and May). One truck was used full time for deliveries and on carpet and linoleum laying jobs.

He also operated his farm a mile and a half east of town where he personally did most of the field work. Some hired help was used on occasions. His wife's brother and mother had occupied the farm house before it was rented to Ness in January 1959.

Ness paid $35.00 a month rent for the farm house and garage. Cost of electricity at the farm was paid partly by Sanborn and party by Ness. Sanborn also employed Ness to care for livestock, do chores, general farm work and render such services as required on the farm. Ness kept his own time for which he was paid $1.25 per hour. He also did some work for others away from the farm.

In 1956 Sanborn bought a used Ford truck as an auxiliary vehicle, to be used in connection with the store business, which he kept at the farm and where it was also used by Ness and one Barlow in connection with the farm work. The key to this truck was kept at the store until about 60 days before the accident during which period it was left at the farm. Ness testified: 'I had the keys to that truck approximately two months or thereabouts.'

Sanborn testified: 'I had taken the key to the truck out to the farm put it in there, and told Mr. Ness, as the work broke, and one thing, to haul the straw down from the McCain farm and stack it up and store it up and put it in a nice pile.'

Prior to that time Ness had used the truck to haul beans to the elevator and baled hay to the Barlow farm, a distance of 12 1/2 miles.

Regarding use of the truck by Ness to haul trash, Sanborn testified: 'When Ness hauled trash to the dump he was hauling refuse from the house, I suppose, and also natural stuff that accumulates on the farm, wire, barrels and pieces of different kinds of trash, limbs off trees, rubbish that accumulates. I have never discussed this situation with Mr. Ness.'

Carl Barlow did part time work for Sanborn at the farm and was permitted by Sanborn to use the Ford truck for his personal use for transportation to and from the Barlow farm. He usually had specific permission from Sanborn to so use the truck but on some occasions used it without getting permission.

Sanborn testified he had told all his employees they were not to take the trucks for personal use and that at one particular time he so advised Ness and Barlow they were not to so use the Ford. Ness was unable to recall any such admonition.

Pullen had used the store truck on many occasions over a considerable space of time to go for coffee, get his children at school and buy groceries for his family. Pullen testified Sanborn never gave him any instructions he was not to use the truck for his own purposes.

Sanborn denied knowledge of any of his employees using his trucks for their personal business except a few occasions when he specifically granted Barlow the use of the Ford when Barlow did not have his own car.

Mrs. Wampler's home was two-thirds of a mile west of the farm on the gravel road into Estherville. She testified: 'Q. How many times would you say that you positively saw that truck go by when it was being driven by Mr. Ness? A. Oh, I don't think I could remember a definite number of times. It was often, but I couldn't say any definite number.'

She later testified she knew Sanborn and the truck went by several times when he wasn't driving it but it could have been somebody other than Ness. The weight and credit to be given her testimony was for the trial court. The trial court in the findings observed that she had pointed out Mr. Ness in the court room.

Ness testified that on the night of the accident (October 14, 1961) he was home in bed when his boys called to report their car was stalled near the Estherville Drive-In Theater, his car was without a battery, he drove Sanborn's Ford truck, with all lights working, into town, stopped to get a beer, drove to the A & W Root Beer stand, entered the east, came out the west driveway and shortly thereafter the truck was struck from the rear by the car driven by Dwight Paul Hansen in which plaintiff was riding.

On cross-examination Ness testified he had said to his wife, 'I hate to take Clyde...