Putnam v. Bussing

• Decision Date: 07 April 1936
• Docket Number: 43185.
• Parties: PUTNAM v. BUSSING et al.
• Court: Iowa Supreme Court

266 N.W. 559

221 Iowa 871

PUTNAM v. BUSSING et al.

No. 43185.

Supreme Court of Iowa.

April 7, 1936

Appeal from District Court, Adair County; Norman H. Hays, Judge.

This is a personal injury suit growing out of a collision of two automobiles, which collision occurred on United States Highway No. 6, at a point about four miles east of the town of Quick in Pottawattamie County, Iowa, on the 28th of May 1932. From an order directing a verdict in favor of Mabel Bussing and rendering judgment against plaintiff for costs as to her, plaintiff appeals.

Affirmed.

Charles Roe and L. M. Hall, both of Carson, and Waldo E. Don Carlos, of Greenfield, for appellant.

C. C. Putnam, of Des Moines, and Wilson & Kellam, of Greenfield, for appellees.

HAMILTON, Justice.

It is alleged in plaintiff's petition that the car in which the defendants were riding was owned by Mabel Bussing, and at the time of the collision was being driven by her husband, Thomas Bussing, with her consent. These allegations of the petition were put in issue by general denial. At the close of all the evidence, the court sustained a motion to direct a verdict in favor of the defendant Mabel Bussing for failure to prove ownership of car as alleged. The case went to the jury as to Thomas Bussing and plaintiff recovered as against him, and as to this neither party has appealed. Plaintiff filed a motion and application to vacate the verdict of the jury by direction of the court in favor of the defendant, Mabel Bussing, and for a new trial on the issues as to said defendant, which was overruled by the court, and from this order, and from each and every adverse order, ruling, and decision of the district court in the trial, the plaintiff has appealed.

The plaintiff assigns as error: (1) The action of the court in sustaining a motion to strike from the record of the evidence Exhibit A, pages 1 and 2, purporting to be certified copy of duplicate certificate of registration and certified copy of application for certificate of registration. (2) The refusal of the court, after the plaintiff had rested his case, and after sustaining said motion to strike, to reopen the case and to grant a postponement or continuance for at least twenty-four hours to permit the plaintiff to obtain and offer in evidence what he terms " duly certified, the authenticated copies other than Exhibit A, pages 1 and 2 heretofore offered" ; the ground urged being that the court having at the beginning of the trial admitted the exhibit in evidence over the objection of defendants, counsel for plaintiff was led to believe that no other or further proof was necessary on this point, and hence was taken by surprise. (3) That the court erred in sustaining the motion to direct a verdict for the reason that notwithstanding the withdrawal of Exhibit A, there was still sufficient evidence to make out a prima facie case of ownership in Mabel Bussing.

The trial took place in Adair county, some 100 miles from the place of defendants' residence in Newton, Jasper county, Iowa. It appears that neither of the defendants was present at the trial of the case. The evidence of ownership other than Exhibit A, which was stricken from the record, consists of the following: Deputy Sheriff Owen was called to the scene of the accident about 10 o'clock in the evening. He saw two cars that were disabled. The number on the license plate of what is referred to in the record as " the Bussing car" was 50-6784. He had some conversation with the occupants of the Bussing car and learned that the occupants were Mr. and Mrs. Bussing, and that Mr. Bussing was driving the car. The car was a Pontiac coupé . Testimony to the same effect was given by two other witnesses.

Does this make out a prima facie showing of ownership of the car in Mabel Bussing? We do not think so. All this evidence amounts to is that a Pontiac car with a Jasper county license plate was being driven by Thomas Bussing when this collision occurred, and that his wife, Mabel Bussing, was also in the car, and that they resided at Newton, Iowa, the county in which the car purported to be licensed, as evidenced by the number plate. And unless the court is required to take judicial notice that No. 50-6784 is a Jasper county, Iowa, number, there is no evidence that this car bore a Jasper county license plate, and this we may not do on proof of nothing save the figures, 50-6784. We think the trial court was right in holding that this was insufficient to make out a prima facie case of ownership in Mabel Bussing.

It was shown by the evidence of plaintiff that the original certificate of registration and the original application for license No. 50-6784, Jasper county, Iowa, was never in the possession or within the control of plaintiff. Plaintiff offered in evidence Exhibit A, pages 1 and 2, purporting to be a record of the registration of a certain Pontiac coupé . This was objected to for the reason that Exhibit A, marked page 1, was incompetent and no proper foundation had been laid; and Exhibit A, marked by the reporter as page 2, was incompetent, irrelevant, and immaterial, and no proper foundation had been laid. This objection was overruled, and the exhibit was admitted in evidence. At the close of all the evidence, the defendant Mabel Bussing moved the court to strike from the evidence " Exhibit A, page 1 and Exhibit A, page 2, for the reason that a proper foundation for the admission of said exhibits in evidence was not laid, and it was objected to at the time of the offer of said purported exhibits; that the official record was not duly certified, and was not certified by an officer having custody of the public records of the County Treasurer of Jasper County, Iowa." The lower court sustained this motion to strike Exhibit A, page 1, for the reason, as stated by the court, " that there is not attached to the same any authentication, or certificate, or purported certificate or authentication, that it is a part of any official records of any public office in the State." Exhibit A, page 2, was likewise stricken from the record upon the following grounds: " The Court is of the opinion that the authentication is such that it is impossible to state whether the instrument purports to be the original record itself or a copy thereof. If it is the original record itself, the Court is of the opinion that it is not in the form prescribed by statute, as it does not bear the signature of the owner, or alleged owner, that it is an application for registration or car license. The court feels that to submit this exhibit to the jury would be going beyond his power, as the liability of the owner of the car is, at best, statutory, under these conditions; and that if a certified copy of the record is desired, a strict compliance with the statute should be required and before the jury should be allowed to speculate upon whether or not the record in question purports to show ownership, the record itself should conform to the requirements of the statute."

A perusal of Exhibit A, page 1, indicates that it is a duplicate certificate for 1932; that the license number is 50-6784. Following the word, " Owner," is the name, " Mabel M. Bussing." On the line above the words " signature of owner" no name appears. It discloses the residence of Mabel M. Bussing as Newton, Jasper county, Iowa, and the make of the car as a Pontiac coupé . It bears the signature of G. C. Greenwalt, secretary of state, and H. H. Morrison, county treasurer. The reverse side of this page 1 contains blank lines used for the purpose of transferring the ownership of record. There is no certificate attached to this page 1 of any kind or character. Page 2 of said Exhibit A purports to be an application for automobile license. After the words, " Name of owner," is " Mabel M. Bussing," and under, " License No., 1932," is 6784, and it contains the make of the car, the place of residence of Mabel M. Bussing, the purported owner, and other information. On the line over the words, " Signature of owner," no name appears. There is a jurat for the notary which is not signed and none of the blanks therein filled out. On the reverse side of this page are blank forms for transfer of ownership, and below this is what purports to be a certificate, which reads as follows: " State of Iowa, Jasper County.

I, R. B. Davis, Deputy County Treasurer of said County being sworn, on oath say that the record as shown on this card of car licensed under number 50-6784 for the year 1932, is a true and correct record.

[Signed] R. B. Davis,

Deputy County Treasurer.

Subscribed and sworn to by R. B. Davis, deputy county treasurer, this 13th day of September, 1933.

[Notarial Seal]

[Signed] Glendale Butler."

It is claimed by plaintiff that under the provisions of sections 4869, 4871, 4873, 4874, 4886, 11296, 11304 of the Code 1931, this exhibit was admissible in evidence. By section 4869 it is provided: " Every owner of a motor vehicle which shall be operated or driven upon the public highways shall, * * * file in the office of the county treasurer of the county in which such owner resides, a verified application for registration or re-registration on a blank to be furnished by the department for that purpose." (Italics ours.) The purported copy of application offered in evidence is neither signed nor verified by any one as owner.

Section 4871 provides: " Upon receipt of the application and license fee for a motor vehicle, * * * the county treasurer shall file such application in his office and register such motor vehicle or trailer with the name,...