McMartin v. Saemisch

Decision Date24 July 1962
Docket NumberNo. 50576,50576
Citation116 N.W.2d 491,254 Iowa 45
PartiesR. F. McMARTIN, Appellee, v. Floyd E. SAEMISCH, Appellant.
CourtIowa Supreme Court

Dekay & Barnes, Atlantic, for appellant.

Hogzett & Burgett, Oakland, for appellee.

PETERSON, Justice.

This is an automobile property damage case involving two automobiles colliding at a rural intersection near Oakland at about 4:30 P.M. on July 31st, 1958. Plaintiff's automobile was driven by his wife. He was not in the car with her. Plaintiff's driver was to the right of defendant. The jury awarded plaintiff $275. Defendant's counter-claim was dismissed by the court. Defendant's motion for new trial was overruled. Since the action was for less than $300, the trial court granted a certificate permitting this appeal, and defendant appealed.

While appellant enlarges somewhat on his statement as to errors he really only raises and argues one alleged error: Was the trial court in error when it instructed the jury under instruction No. 13 that Mrs. McMartin's contributory negligence, if any, was not imputed to plaintiff, the owner of the car?

I. The collision happened at an intersection about one mile west of Oakland. Mrs. McMartin had driven plaintiff's car to town, and while there purchased groceries for the family. Defendant argues that under the family purpose doctrine Mrs. McMartin's contributory negligence, if any, was imputed to plaintiff.

We do not recite extensive facts. Only one legal question is involved, and the above facts form the basis for such question.

II. Both parties cite Stuart v. Pilgrim, 247 Iowa 709, 74 [254 Iowa 47] N.W.2d 212, and Phillips v. Foster, 252 Iowa 1075, 109 N.W.2d 604.

It should be observed that defendant did not cross-appeal as to the court's dismissal of defendant's counter-claim. Plaintiff's case was presented to the jury on the ordinary instructions as to negligence on the part of defendant, and absence of contributory negligence on the part of Mrs. McMartin, except instruction No. 13, which stated to the jury that as a matter of law Mrs. McMartin's contributory negligence, if any, was not imputed to plaintiff. The case simmers down to the one question as to whether or not the trial court was in error in giving such instruction.

III. The two cases of Stuart v. Pilgrim and Phillips v. Foster, both supra, sustain the trial court in its instruction as to lack of such imputation to plaintiff. In the Stuart case plaintiff's (Mrs. Stuart) car was driven by her husband, with her consent. She was riding in the automobile. Defendant (Mrs. Pilgrim) was driving her own car. Both automobiles were traveling in the same direction. As plaintiff's car approached a private driveway leading from the left side of the highway to the plant of the Bendix Aircraft Corporation, the driver prepared to make a left turn for the purpose of entering this drive. Defendant, coming from the rear, had just passed two other cars and was about to pass plaintiff's when she observed plaintiff's automobile was about to turn. She endeavored to swing to the right, but a collision occurred with resultant damages to both cars and personal injuries to plaintiff.

The trial court instructed the contributory negligence of plaintiff's husband, the driver of the car, was imputed to plaintiff. We reversed as to this question and established the principle that in the absence of any relationship such as principal and agent etc., the contributory negligence of Mr. Stuart, the driver of the car, was not by virtue of the statute imputed to Mrs. Stuart. Three previous cases holding to the contrary were overruled. Secured Finance Co. v. Chicago R. I. & P. R. Co., 207 Iowa 1105, 224 N.W. 88, 61 A.L.R. 855; Rogers v. Jefferson, 224 Iowa 324, 275 N.W. 874; Estate of Green, 224 Iowa 1268, 278 N.W. 285.

Phillips v. Foster, supra, supported this doctrine but called attention to the fact that Stuart v. Pilgrim was a case of strict statutory construction and was not a declaration of any broad, comprehensive rule giving an owner a right to recover regardless of the contributory negligence of his consent driver. It was pointed out that Stuart v. Pilgrim held that the consent statute did not, by its provisions, impute contributory negligence of a consent driver to the owner so as to bar recovery for a third party's negligence. Situations wherein negligence of a driver might be imputed to the owner in the absence of the statute were not affected. These situations include those in the field of agency, master and servant, partnership and joint venture.

Phillips v. Foster recognized the distinction and commented that cases 'decided solely under the family purpose doctrine and liability under the joint enterprise doctrine are not affected by Stuart v. Pilgrim.' Phillips v. Foster discusses the question of control and the burden of showing that control had been surrendered or could not be exercised. The opinion says: 'An example of where control has clearly been surrendered would be where the owner was not present in the car.'

Legal responsibility of a husband for the torts of a wife is not based on marriage. Section 597.19, Code 1962, I.C.A., (the same provision appears in former Codes) says: 'For civil injuries committed by a married woman, damages may be recovered from her alone, and her husband shall not be liable therefor, except in cases where he would be jointly liable with her if the marriage did not exist.'

5A, Am.Jur., Automobiles and Highway Traffic, section 594, on page 601, says: 'In the absence of a statute imposing liability for the use of an automobile by members of the owner's family, a husband can be held liable for the negligent operation of his automobile by his wife only upon the theory of personal negligence in entrusting the car to her, knowing that she is incompetent to drive, or upon the theory that the wife, in driving his automobile, was at the time of the injury acting as her husband's agent or that he otherwise had control over the operation of the car.'

Where the negligence of a wife in operating an automobile is imputed to the husband, the liability rests on the consent statute or one of those situations of respondeat superior or joint venture where there would be liability in the absence of the consent statute or marital relationship.

It negligence is not imputed except under certain circumstances, neither is contributory negligence. We have said that contributory negligence is not imputed under the consent statute.

IV. Appellant urges liability as to plaintiff under family purpose use. Since appellant urges the theory so vigorously, it is advisable that we give the question attention.

Section 321.493 appeared for the first time in the 1924 Code. It is as follows: '321.493. Liability of damages. In all cases where damage is done by any motor vehicl 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.'

This establishes specific liability as to definite persons. The situation in the case at bar is the reverse of this statutory procedure. The owner sued a third party charged with negligence. Such party claims exemption from liability on account of contributory negligence of the driver, the wife of the owner.

It is true we did not...

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8 cases
  • Handeland v. Brown
    • United States
    • Iowa Supreme Court
    • 27 March 1974
    ...with his consent by the wife. The latter rule was repudiated when the family purpose doctrine was rejected in McMartin v. Saemisch, 254 Iowa 45, 116 N.W.2d 491 (1962), where the Honey case was referred to as 'an interesting discussion of the old law' and distinguished. The court held the fa......
  • Houlahan v. Brockmeier
    • United States
    • Iowa Supreme Court
    • 5 April 1966
    ...we have had no need since section 321.493, Code, 1962, was enacted. Furthermore we find no good cause to now revive it. McMartin v. Saemisch, 251 Iowa 45, 116 N.W.2d 491; Michaelsohn v. Smith, N.D., 113 N.W.2d 571; and Jacobsen v. Dailey, 228 Minn. 201, 36 N.W.2d 711, 11 A.L.R.2d 1429. Fina......
  • Marcus v. Everett
    • United States
    • Nebraska Supreme Court
    • 4 March 1976
    ...have served its purpose and will no longer be needed. See, Jacobsen v. Daley, 228 Minn. 201, 36 N.W.2d 711 (1949); McMartin v. Saemisch, 254 Iowa 45, 116 N.W.2d 491 (1962). We conclude, therefore, that the family purpose doctrine is applicable and may be applied to the fact situation involv......
  • Pesqueira v. Talbot
    • United States
    • Arizona Court of Appeals
    • 9 May 1968
    ...and remanded. HATHAWAY, C.J., and KRUCKER, J., concur. 1 At least three courts of last resort have done this. See McMartin v. Saemisch, 254 Iowa 45, 116 N.W.2d 491 (1962); Jacobsen v. Dailey, 228 Minn. 201, 36 N.W.2d 711, 11 A.L.R.2d 1429 (1949); and Hackley v. Robey, 170 Va. 55, 195 S.E. 6......
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