McQuillen v. Meyers

• Decision Date: 08 March 1932
• Docket Number: 41149
• Citation: 241 N.W. 442,213 Iowa 1366
• Parties: BERNADINE MCQUILLEN, Appellee, v. AL. M. MEYERS, Appellant
• Court: Iowa Supreme Court

241 N.W. 442

213 Iowa 1366

BERNADINE MCQUILLEN, Appellee, v. AL. M. MEYERS, Appellant

No. 41149

Supreme Court of Iowa, Des Moines

March 8, 1932

Appeal from Dubuque District Court.--P. J. NELSON, Judge.

Action by a guest against the owner of an automobile for damages resulting from reckless driving. Verdict and judgment for plaintiff. Defendant appeals.

Affirmed.

Kane & Cooney and Hugh Stuart, for appellant.

Kenline Roedell, Hoffmann & Tierney, for appellee.

MORLING J. WAGNER, C. J., and ALBERT, KINDIG, GRIMM, and STEVENS JJ., concur.

OPINION

MORLING, J.

Error is assigned only to instructions. In brief, the plaintiff's claim is that she, with her escort, and one other girl, Miss Dolan, after attending a dance, got into defendant's automobile, which was in the possession of Weidner and was being driven by him with defendant's consent; that the girls asked that they be taken home; that Weidner instead undertook to drive to a roadhouse; that the pavements were frosty and slippery; that Weidner was angrily arguing with Miss Dolan; that the girls protested against the speed at which he was driving and asked him to drive slower, but he paid no attention; that the car swerved; that in rounding a curve Weidner was driving, according to the speedometer and also according to the opinion of the witnesses, 55 miles per hour; that the car skidded and overturned, causing the injuries to recover for which the action is brought.

I. The court defined negligence, but charged that the term "recklessness" is a stronger one than negligence or want of reasonable care; that it indicates an indifference to consequences, a willingness to take a chance when there is present a perception of danger, and in the operation of an automobile signifies the driving of the car in heedless disregard of consequences; that it does not mean momentary thoughtlessness, inadvertence, or error in judgment. Defendant contends that, measured by the standard of recklessness laid down in Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46, the instructions were misleading, prejudicial, confusing negligence with recklessness. Instructions are to be considered as a whole. The court further charged that the rate of speed is not alone determinative, but the jury should take into consideration the condition of the road as to surface and contour, the character of the curves, the driver's attention or inattention to management and control, and every other fact and circumstance in the evidence that would aid in determining whether the driver was recklessly operating; that before plaintiff could recover plaintiff must prove that the casualty was caused by reckless operation. In substantial conformity to defendant's request to charge, the court further told the jury that, when one is confronted with a sudden peril and acts with reasonable care in line with the circumstances as they appear to him as a person of ordinary care and prudence, though he takes the more dangerous of two or more means of escape this would not constitute recklessness; that if the driver was suddenly confronted with ice or a slippery condition of the road and, acting as a reasonably prudent person, adopted the course which he believed would be the safer under all the circumstances, then he would not be guilty of recklessness. The court further charged that the jury should consider the time of night, condition of the road both as to surface and curves, the rate of speed, condition of the ground, position of the automobile immediately after the accident, what, if any, warning was given the driver, and every other fact in evidence which would aid the jury in determining whether the driver operated the automobile recklessly. The Court is of the opinion that under our holding in Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46, and Neessen v. Armstrong, 213 Iowa 378, 239 N.W. 56, the exception is not well taken.

II. The amended and substituted petition alleged that the plaintiff's injuries were caused by the conduct of the driver in driving the car while under the influence of intoxicating liquor and recklessly. The court in the instructions made no reference to the charge of driving while under the influence of intoxicating liquor. Defendant contends that inasmuch as the court undertook to tell the jury what the amended and substituted petition substantially contained he should have incorporated the averment including intoxication. There was no evidence that the driver was under the influence of intoxicating liquor. In the original petition the claim for expenses and loss of time was somewhat in excess of that made in the amended and substituted petition, and for pain, suffering, disfigurement, personal injury, for medical care and loss of earning ability, plaintiff claimed $ 19,389, a total of $ 20,000; while the court submitted to the jury the right to recover a total of $ 15,372.75. The instruction was doubtless based upon Section 10464 of the Code, limiting the recovery by a woman for loss of time, medical attendance, and other expenses resulting from negligence, to $ 15,000. The verdict was for $ 3,572.75. The defendant complains that the court did not state the facts correctly as to the amount plaintiff demanded as her damages. He has no cause for complaint of the action of the court in substituting the lower amount, $ 15,372.75, for the $ 20,000 claimed. He was not prejudicially affected by the action of the court in permitting the jury to allow a total of $ 15,372.75 although under the statute the limit is $ 15,000. It is evident that the comparatively slight excess of $ 372.75 did not affect the result.

III. The court detailed the "propositions" which the plaintiff was required to establish as a prerequisite to her right to recover. In stating these "propositions" he did not use the term "issues." The jury were told that if plaintiff had failed to "prove any one of said propositions" the plaintiff could not recover; that the defendant could be held liable only for such damage as was the result of reckless operation in one or more of the charges of recklessness as alleged by plaintiff and "set out in the statement of issues herein;" that if after considering all the evidence the jury found that the driver operated the car "recklessly in any one or more of the particulars as set out in the statement of issues in these instructions and submitted to you * * * then the defendant would be liable;" that if plaintiff had failed to prove that Weidner was driving the car with the consent of the owner they need proceed no further, but "if she has so established * * * you will then proceed to the determination of the remaining issues submitted for your determination." Defendant complains that the word "issues" in a lawsuit is a technical term, and that the court in all cases should inform the jury correctly and definitely what the issues are and where they may be found in the instructions, and that the jury was misled by the use of the term "issues." The term "issues" is one in quite common use and its general meaning is well understood. The term was not one used in the instructions in any technical sense, but, as is very apparent, interchangeably with the word "propositions." We are of the opinion that the jury was under no misapprehension as to its meaning, was not misled. Besides, if defendant desired that the court explain the term, he should have made request therefor. Authorities under V post.

IV. The court charged that one who enters the automobile of another as a guest is not precluded from recovery for injuries in every case and under all circumstances, nor is she bound by any ethical rule to the effect that one who is the guest of another should not seek recovery in a proper case; that the law is plain that a guest may recover from the owner for the damage caused as the result of the reckless operation by the driver. The exception to this instruction is, in substance, that the jury was misled by the statement "'Nor is she bound by any ethical rule to the effect that one who is a guest of another should not seek recovery in a proper case.' The instruction allowed the jury to wander into the field of ethics and rules of etiquette and the said instruction furnishes no standard of what" the ethical rule is, and sets out no statement of facts of what is a "proper case" for a guest to seek recovery; that the last clause of...