Paulson v. Hanson

• Decision Date: 04 April 1939
• Docket Number: 44625.
• Citation: 285 N.W. 189,226 Iowa 858
• Parties: PAULSON v. HANSON et al.
• Court: Iowa Supreme Court

285 N.W. 189

226 Iowa 858

PAULSON v. HANSON et al.

No. 44625.

Supreme Court of Iowa.

April 4, 1939

Appeal from District Court, Iowa County; Jas. P. Gaffney, Judge.

Action for damages under Code section 5026-b1 for death of plaintiff's decedent in an automobile collision. Trial to a jury and verdict for defendants. Plaintiff appeals.

Affirmed.

Wallace & Claypool, of Williamsburg, for appellant.

Hatter & Harned, of Marengo, for appellees.

HALE Justice.

This is an action brought under the provisions of section 5026-b1, Code 1935, which is the same as section 512 of chapter 134 Acts of the Forty-Seventh General Assembly.

The accident for which damage is claimed occurred on March 22 1937. The deceased Harold Paulson was riding in an automobile which was owned by the defendant Bert Hanson, and was being driven by the defendant Robert Hanson with the consent of the owner, defendant Bert Hanson. The accident occurred in the early hours of the morning, on primary road No. 6, east of Marengo. Defendant Robert Hanson had been to Cedar Rapids during the evening and had invited Harold Paulson, the deceased, to accompany him home to Williamsburg, where they both lived. In coming from Cedar Rapids they first traveled primary road No. 149 until it intersected with primary road No. 6. At a point immediately west of South Amana, apparently the defendant Robert Hanson fell asleep, and the automobile ran off the south side of the pavement and into a cement abutment of a bridge, which collision resulted in the death of Harold Paulson a short time thereafter on the same day.

The plaintiff's allegations of recklessness are four in number, only one of which, however, was submitted to the jury. The defendants, in answer to the charges of recklessness, entered a denial thereto, and under the issues thus made trial was had. At the conclusion of plaintiff's testimony, and also at the conclusion of all the evidence, defendants' motion for a directed verdict was overruled and the cause was submitted to the jury, who returned a verdict in favor of the defendants. Plaintiff's exceptions to instructions and motion for new trial being overruled, plaintiff appeals from the final judgment entered and from such overruling of exceptions and motion for new trial.

The statute heretofore referred to (section 5026-b1, Code 1935) is as follows: " 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."

There is no dispute that the deceased Harold Paulson was a guest, and that the defendant Robert Hanson, driver of the car, would be liable only for recklessness.

It may be well to review the record in regard to the overruling of defendants' motion for a directed verdict. This motion was based on several grounds-that the plaintiff failed to establish that either defendant was guilty of recklessness, and that it would be the duty of the court in the event of a verdict for plaintiff to set such verdict aside; and, among other grounds, that there was no evidence to establish any recklessness. While this motion was overruled by the court, we are inclined to believe that, under all the evidence submitted, the court would have been justified in sustaining the motion.

As we have often held, the guest statute is an exception to the rule as to liability for negligence. See Shenkle v. Mains, 216 Iowa 1324, 247 N.W. 635; Sullivan v. Harris, Iowa, 276 N.W. 88 (decided in November 1937).

Recklessness goes beyond mere negligence and has often been defined, and was so defined in the instructions in this case. It means proceeding without heed of or concern for consequences, and must be such as to manifest a heedless disregard for or indifference to the rights of others. In the case at bar there is no question of intoxication; and it is not seriously argued that, under our previous holdings, the mere act of falling asleep constitutes recklessness. Kaplan v. Kaplan, 213 Iowa 646, 239 N.W. 682; Shenkle v. Mains, supra; Knutson v. Lurie, 217 Iowa 192, 251 N.W. 147.Nor does the plaintiff urge that the acts of the driver while asleep, or after being overcome by sleep, would constitute recklessness; but his claim is that the defendant driver, knowing that he was sleepy, continued to drive the car, and that, with such knowledge, in continuing to drive he was reckless.

The Kaplan case, supra, has often been cited in this court and in courts of other states, and, while the statutes differ in the various jurisdictions, yet it has frequently been held as a correct statement of the law. Several cases cited by defendants refer to the Kaplan case with approval. One case, Pickering v. Stearns, 182 Wash. 234, 46 P.2d 394, criticizes the case, or, rather, some of the expressions in the case. But the Kaplan case goes further than the mere falling asleep. Quoting from that case [ 213 Iowa 646, 239 N.W. 685]:

" But the appellant argues that the father was reckless for going to sleep or permitting himself to be overcome by sleep. While he may have been negligent, this does not constitute recklessness within the meaning of the statute. In Siesseger v. Puth [213 Iowa 164, 239 N.W. 46]."

" * * * The fact that he was tired and facing the east sun and went to sleep cannot and does not raise any negligence there may have been in said act to the level of recklessness. His unconscious conduct while asleep, or semiconscious conduct while going to sleep, or the mere fact that he permitted sleep to overcome him, do not evince a heedless disregard of the rights of the daughter."

In the case of Duncan v. Lowe, 221 Iowa 1278, 268 N.W. 10, 12, decided in 1936, the Kaplan case is referred to and reviewed, and we quote from the opinion of the court in that case:

" In the case at bar there is no evidence the driver was asleep unless it be she ‘ just sort of lost herself for perhaps a second.’ If this means she started to fall asleep, or even momentarily was asleep, the culpability, if any, was of no greater degree than in the Kaplan Case. That defendant may have ‘ lost herself for perhaps a second’ is the only evidence from which it could be found that any weariness affected or lessened her ability to properly operate the car. Finding no distinguishing circumstances, we are of opinion the holding in the Kaplan Case determines that the element of weariness in the case at bar did not raise the possible negligence to the level of recklessness."

In the above case the evidence indicated that the car was being operated on a straight, level, and unobstructed paved road, at a speed of fifty miles per hour, by a person who was somewhat weary from loss of sleep and somewhat unnerved by an accident happening earlier in the day, and that the car swerved and overturned, notwithstanding the efforts of the driver to control it.

It was held that, following the Kaplan case, there was no jury question made on the issue that the automobile...