Puckett v. Pailthorpe

• Decision Date: 05 February 1929
• Docket Number: 39283
• Citation: 223 N.W. 254,207 Iowa 613
• Parties: MARY PUCKETT, Appellant, v. A. W. PAILTHORPE et al., Appellees
• Court: Iowa Supreme Court

223 N.W. 254

207 Iowa 613

MARY PUCKETT, Appellant, v. A. W. PAILTHORPE et al., Appellees

No. 39283

Supreme Court of Iowa, Des Moines

February 5, 1929

Appeal from Linn District Court.--A. B. CLARK, Judge.

This is an action wherein the plaintiff seeks damages against the defendants for injuries caused by a door, falling from an automobile. The defendants demurred to the petition, and the demurrer was sustained. Therefore, the plaintiff appeals.

Reversed.

E. A Johnson, for appellant.

Grimm Wheeler, Elliott & Shuttleworth, for appellees.

KINDIG J. ALBERT, C. J., and STEVENS, FAVILLE, DE GRAFF, MORLING and WAGNER, JJ., concur.

OPINION

KINDIG, J.

Only one question is presented in this case. It relates to a construction of Section 5026-b1 of the 1927 Code. That legislative enactment reads 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."

Material portions of appellant's petition include these words and figures:

"That, on or about July 20, 1927, defendants [appellees] * * * took their family to the Y. M. C. A. in Cedar Rapids, Iowa, for dinner; that, while at said Y. M. C. A., defendants [appellees] met the plaintiff [appellant] and her two small children, who were with her [appellant]. That defendants [appellees] then requested and invited the plaintiff [appellant] and her children to get into their automobile [an Oakland sedan], which was then standing by the curb in front of the said Y. M. C. A., and wait until after defendants [appellees] had finished their dinner, and then defendants [appellees] would take the plaintiff [appellant] and her said children to their home on Maplewood Drive, in said city of Cedar Rapids. That plaintiff [appellant] accepted the said invitation of defendants [appellees], and, complying with said request, went with one of the defendants' [appellees'] children, whom defendants [appellees] sent with her [appellant], to point out the right car, for the purpose of getting in the car and waiting for the defendants [appellees] to finish their said meal. That, as plaintiff [appellant] approached the said car for the purpose of getting into the same, and while she [appellant] was standing on the curb for this purpose, and while attempting to open the door, in order that she [appellant] might enter the car, the said door fell from its place and position, fell upon the struck the left foot of the plaintiff [appellant], and crushed it between said door and the curb on which she [appellant] was standing."

Appellant then in her pleading describes the nature and extent of the injury, which she alleges was severe and permanent, resulting in deformity. This concussion to her foot, appellant urges, caused her physical pain and mental suffering. Continuing her statement of the cause of action, appellant asserts:

"That said car was in a defective condition, and the said door thereon was loose, and not fastened to the car; that said door was a large, heavy one * * *. That plaintiff [appellant] had no knowledge or information that said car was defective, and that said door was loose and liable to fall from its position if she [appellant] attempted to open it, and the defendants [appellees] and each of them well knew that said door was loose, and would fall from the car if one did attempt to open it, and they [appellees] carelessly and negligently failed to advise plaintiff [appellant] of the loose, dangerous, and defective condition of said car and said door, and the fact that said door was liable to fall if an attempt were made to open it, although the defendants [appellees] both had full notice and knowledge of the loose condition of the door and the fact that it was liable to fall if any attempt were made by one to open it."

Wherefore, appellant prayed for damages in the sum of $ 5,582.

To appellant's pleading containing those facts appellees demurred, on the following grounds: First, because it affirmatively appears that appellant was a passenger, or a person riding in the motor vehicle as a guest, by invitation, and not for hire; second, because appellant failed to allege in her petition that the injuries were sustained as a result of the driver's intoxication or recklessness; and third, because Section 5026-b1, supra, is a bar to appellant's recovery, under the facts and circumstances.

Upon the presentation of those issues to the trial court, it sustained the demurrer. Election was made by appellant to stand upon the petition, and accordingly judgment was entered against her, in favor of the appellees. Such is the problem presented for solution.

I. Throughout their argument, appellees contend that appellant was a passenger at the time of her injury, and consequently she cannot recover, because she was not injured by the driver. In other words, they insist that the owner of the vehicle is in no event responsible for his own actions toward the passenger. Said passenger or person riding in the vehicle cannot recover for the owner's negligence, appellees argue, but redress, in all instances, under the statute, is limited to the recklessness of the driver. We do not find it necessary to determine that proposition, but confine our discussion to a decision of whether or not appellant was a passenger at the time of her injury.

Many definitions may be found for this relationship between the one conveyed and the conveyor. Facts always control in an individual case. When speaking generally upon the subject of common carriers, this court said, in Weber v. Chicago, R. I. & P. R. Co., 175 Iowa 358, 151 N.W. 852 (pages 363, 364):

"It is not easy to state a general rule, nor to give a definition of the word 'passenger' which would embrace all the essential elements. As said in 2 Hutchinson on Carriers (3d Ed.), Sec. 997: 'The one usually accepted by the courts when a definition has been attempted, is that a passenger is "one who travels in some public conveyance by virtue of a contract, express or implied, with the carrier, as the payment of fare, or that which is accepted as equivalent therefor." This definition, however, like all others, is hardly comprehensive enough; for, as a general rule, every person not an employee, being carried with the express or implied consent of the carrier upon a public conveyance usually employed in the carriage of passengers, is presumed to be lawfully upon it as a passenger. There are two main elements in the legal definition of a passenger: First, an undertaking on the part of the person to travel in the conveyance provided by the carrier; and second, an acceptance by the carrier of...