Porter v. Decker

• Citation: 270 N.W. 897,222 Iowa 1109
• Decision Date: 12 January 1937
• Docket Number: 43534.
• Parties: PORTER v. DECKER.
• Court: United States State Supreme Court of Iowa

270 N.W. 897

222 Iowa 1109

PORTER v. DECKER.

No. 43534.

Supreme Court of Iowa.

January 12, 1937

Appeal from District Court, Webster County; T. G. Garfield, Judge.

Action at law for damages sustained by plaintiff in an automobile accident alleged to have been caused by the negligence of the defendant. There was a verdict and judgment in favor of the plaintiff, and the defendant appeals. The opinion states the facts.

Reversed.

Alan Loth, of Fort Dodge, for appellant.

Maurice Breen and Thomas M. Healy, both of Fort Dodge, for appellee.

DONEGAN, Justice.

It appears without dispute in the evidence in this case that, on or about the 22d day of September 1933, the defendant, who was then in the trucking business, made a trip from his home in Fort Dodge to the city of Omaha, Neb., for the purpose of hauling some empty beer kegs and cases there and obtaining a load of filled kegs and cases which he brought back to Fort Dodge on the following day. He was accompanied by the plaintiff, and on the return trip on September 23, 1933, a collision occurred between the defendant's truck and an automobile, and the plaintiff sustained injuries. The plaintiff brought action for the damages alleged to have been sustained by him as the result of such injuries, basing his claim upon the alleged negligence of the defendant. Upon the trial of the case the defendant moved the court for a directed verdict in his favor and this motion was overruled. He also asked for various instructions, which were refused. A verdict was rendered in favor of the plaintiff and judgment entered thereon. A motion for new trial and exceptions to instructions was filed by the defendant, which were also overruled. From the judgment and rulings of the court, the defendant appeals.

This case was not brought by the plaintiff on the theory that he was riding in the defendant's truck as a guest or by invitation and not for hire, under the provisions of section 5026-b1 of the Code of 1931. Under that statute, if plaintiff was riding in defendant's truck as a mere guest or by invitation and not for hire, before he could recover, it would be necessary for him to allege and to prove that his damage was caused as a result of defendant being under the influence of intoxicating liquor or because of defendant's reckless operation of his truck. The plaintiff in this case, however, alleged in his petition that he was a passenger in the motor vehicle owned and operated by the defendant; that, at the instance and request of the defendant, he left his home in Fort Dodge and accompanied the defendant upon the trip to Omaha and return; and that, by an oral agreement with the defendant, he was to accompany him on said trip as a companion, relief driver, and to assist him in the loading and unloading of defendant's truck. No question is presented in this appeal in regard to the negligence of the defendant, the contributory negligence of the plaintiff, the proximate cause of the accident and injuries, or the extent of the injuries and amount of damages sustained by plaintiff. The questions here presented go only to the sufficiency of the evidence to show that the plaintiff was riding in defendant's truck in any capacity other than as a guest or by invitation and not for hire.

The appellant's first contention is that the court erred in overruling a motion for a directed verdict in his favor because, he claims, the evidence was not sufficient to show that the plaintiff was other than a passenger who was riding in defendant's truck as a guest and not for hire. There was evidence, however, tending to show that, in the evening of the day on which the defendant left Fort Dodge to go to Omaha with his truck, he called at the plaintiff's home to see him but was unable to do so, because the plaintiff was absent at a football game, and that at the time he told plaintiff's mother he wanted plaintiff to go with him to Omaha; that, upon being told by plaintiff's mother that plaintiff was at a football game, the defendant drove past the football grounds in an effort to see plaintiff; that he again went to plaintiff's home, after the plaintiff had returned from the football game and gone to bed; that at that time he told the plaintiff that he wanted plaintiff to go along with him (defendant) to Omaha to help him; that the plaintiff had been with defendant on prior trips, on which he had assisted defendant in unloading and loading his truck and knew what such help meant; that the plaintiff did go along with defendant on the trip to Omaha, helped him to unload his truck at a brewery there, helped him to load it with filled kegs and cases, and accompanied him on his return trip to Fort Dodge; and that it was while on this return trip that the accident occurred out of which the plaintiff's injuries resulted. There was also, it is true, evidence on the part of the defendant tending to show that no work or services were contemplated, or were performed by the plaintiff upon this trip, and that, if the plaintiff rendered any help at all to the defendant, it was rendered merely as a matter of courtesy, without any agreement to do any work or expectation of compensation on the part of the plaintiff, and without any intention on the part of the defendant to employ or require the performance of any services by the plaintiff. We think the most that can be said for the evidence is that it presents a conflict, and, this being true, there was, of course, a question for the jury. We find no error in the action of the trial court overruling the appellant's motion for a directed verdict.

Several other errors are alleged by the appellant, because of rulings of the court refusing to submit instructions requested by appellant, and because of instructions which were given by the court and excepted to by appellant. Most of the appellant's objections, however, go to instruction No. 5 given by the court and are based upon the ground that the court erred in this instruction in submitting to the jury matters as to which there was no evidence presented upon the trial of the case. In its instruction No. 5 the court told the jury in part as follows: " If, in this case, you find as claimed by defendant, that plaintiff was accompanying defendant on the trip in question for his (plaintiff's) own accommodation, benefit, pleasure or convenience, then plaintiff was a guest at the time, and is not entitled to recover. If, however, as claimed by plaintiff, h...