Nielsen v. Kohlstedt

• Decision Date: 13 November 1962
• Docket Number: No. 50746,50746
• Citation: 117 N.W.2d 900,254 Iowa 470
• Parties: Marvin NIELSEN, Appellee, v. Albert Henry KOHLSTEDT and Virgil Dean Hutchinson, Appellants.
• Court: Iowa Supreme Court

Page 900

117 N.W.2d 900

254 Iowa 470

Marvin NIELSEN, Appellee, v. Albert Henry KOHLSTEDT and Virgil Dean Hutchinson, Appellants.

No. 50746.

Supreme Court of Iowa.

Nov. 13, 1962.

Edson & Hamilton, Storm Lake, Edward S. White, Carroll, and Bernard L. Willis, Lake City, for appellants.

Pendleton & Pendleton, Storm Lake, and Daniel D. Sanderson, Estherville, for appellee.

MOORE, Justice.

Plaintiff, while riding in a car owned and operated by defendant Virgil Dean Hutchinson, sustained injuries as a result of an intersection collision with a car owned and operated by defendant Albert Henry Kohlstedt. Plaintiff alleged he was a nongratuitious passenger and not a guest in the Hutchinson vehicle. The trial court overruled Hutchinson's motions for directed verdict made at the close of plaintiff's evidence and renewed at the close of all the evidence. The case against each defendant was submitted to the jury on the necessary elements of a negligence case. After overruling Hutchinson's motion for judgment notwithstanding the verdict and in the alternative for a new trial, judgment was entered against both defendants on the $25,000 jury verdict in favor of plaintiff. Both defendants gave notice of appeal. Kohlstedt has not completed his appeal. We are concerned here only with Hutchinson's appeal. For brevity he will be referred to as defendant.

Defendant asserts the trial court erred in (1) overruling his motions for directed verdict, (2) giving instruction number 25 and refusing to give defendant's requested instruction number 1, (3) failing to sustain his objections to certain evidence presented by plaintiff and not striking the same, and (4) not sustaining his motion for judgment notwithstanding the verdict or his alternative motion for a new trial. All relate to the sole issue argued by defendant, i. e., plaintiff was a guest while riding in defendant's car.

On the morning of November 10, 1960 plaintiff Marvin Nielsen, Robert Vauble and Robert Hutchinson were riding in a car owned and operated by defendant. They had left Sac City for Lanesboro to work on an addition to the fire station. An intersection accident with the Kohlstedt car occurred resulting in personal injuries to plaintiff. Defendant was a bricklayer of many years experience. Plaintiff was a 'mud mixer', a tender. His job was to mix mortar and carry blocks as needed by the bricklayers on a construction job. Sometimes he did tend for defendant when not mixing mortar. Vauble was a tender for bricklayers. The occupation of Robert Hutchinson is not disclosed by the evidence.

For several years these men had worked for McCorkle Construction Company of Sac City, when work was available. Prior to November 9, 1960 a McCorkle job had been completed. The men started working on the Lanesboro job on November 9, 1960. The evidence is in dispute as to whether the Lanesboro job was a McCorkle contract. The company was helping on the job. Vauble testified he was working for McCorkle. The men in the car were fellow workers on the project and had worked as such with others, on November 9. Plaintiff tended for four bricklayers, including defendant on that date. Defendant was not the employer nor a foreman. As one of the bricklayers on the job he had some supervision over the tenders. He did not hire nor could he fire any of them. The amount of work a bricklayer could do depended on the efforts of the tender. Bricklayers seldom mixed their own mortar.

On November 9, plaintiff, defendant and two other bricklayers road to the Lanesboro job with Joe Corwith, a bricklayer. How Vauble got to the job on November 9 is not shown by the evidence. He often went to the jobs on a McCorkle truck. When the men worked for McCorkle he usually furnished transportation but there were times when his vehicles did not have enough room to haul the workmen. On those occasions one of the bricklayers or tenders volunteered to drive his car and the others rode with him. On one occasion defendant rode with plaintiff. No charge was made for such rides.

The morning of November 10 the men gathered at McCorkle Construction Co. in Sac City. Vauble had planned to ride on the McCorkle truck. It left before his arrival. Plaintiff was invited to ride with defendant and the men started for the Lanesboro job.

Over defendant's objections evidence was received that where a bricklayer does a job he must have a tender to achieve maximum results, he is dependent on the supplier of the bricks, sand and mortar, one tender is required for each bricklayer, by custom and practice the bricklayers often haul the tenders, and the bricklayers change off driving.

Under his first assignment of error defendant argues the evidence establishes plaintiff was a guest and contends section 321.494, Iowa Code, I.C.A., bars any recovery for ordinary negligence. It provides:

'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.'

The purpose of our guest statute is to protect automobile drivers and owners from claims made by persons who were riding in the motor vehicle as guests, or by invitation and not for hire except as in the statute provided. It is desirable to cut down litigation arising from the commendable unselfish practice of sharing with others transportation in one's vehicle and protect the Good Samaritan from claims based on negligence by those invited to ride as a courtesy. Bookhart v. Green-lease-Lied Motor Co., 215 Iowa 8, 244 N.W. 721, 82 A.L.R. 1359; Knutson v. Lurie, 217 Iowa 192, 251 N.W. 147; Sullivan v. Harris, 224 Iowa 345, 276 N.W. 88; Murray v. Lang, 252 Iowa 260, 106 NW.2d 643; Horst v. Holtzen, 249 Iowa 958, 90 N.W.2d 41; Hardwick v. Bublitz, Iowa, 111 N.W.2d 309. See also 45 Iowa Law Review 170.

Although our guest statute is in derogation of the common law it is to be liberally construed with a view to promote its objects and assist the parties in securing justice. Section 4.2, Code, 1958, 1962, I.C.A.; Sullivan v. Harris, 224 Iowa 345, 358, 276 N.W. 88; Murray v. Lang, 252 Iowa 260, 265, 106 N.W.2d 643, 647; Hardwick v. Bublitz, Iowa, 111 N.W.2d 309, 312.

In Murray v. Lang, 252 Iowa 260, 266, 267, 106 N.W.2d 643, 647, in reference to our guest statute we said:

'Thus, in line with our rule of liberal construction of this statute for the protection of 'the owner or operator of a motor vehicle', we have in effect created a presumption, rebuttable, that an occupant riding in a car operated by another person is a guest within the meaning of Section 321.494, and has the burden of proving otherwise in an action predicated upon negligence of the operator or owner.'

In Knutson v. Lurie, 217 Iowa 192, 197, 251 N.W. 147, we held the occupant of an automobile driven by another is neither a guest nor mere invitee when he is riding there (1) when performing his duties as a servant of the owner or operator of the car; or (2) for the definite and tangible benefit of the owner of operator; or (3) for the mutual, definite and tangible benefit of the owner or operator on the one hand, and of the occupant on the other. It has been cited many times upon this proposition. Thuente v. Hart Motors, 234 Iowa 1294, 15 N.W.2d 622; Stenberg v. Buckley, 245 Iowa 622, 61 N.W.2d 452; McBride v. Dexter, 250 Iowa 7, 92 N.W.2d 443. Such benefits to the operator or owner as are incidental to hospitality, social relations, companionship or the like are not definite and tangible benefits as are contemplated by the rule.

Apparently plaintiff seeks to apply either the second or third basis to carry his burden of proof. It is definite plaintiff was not a servant or...