Reimers v. Petersen

• Decision Date: 07 May 1946
• Docket Number: 46721.
• Citation: 22 N.W.2d 817,237 Iowa 550
• Parties: REIMERS v. PETERSEN.
• Court: Iowa Supreme Court

22 N.W.2d 817

237 Iowa 550

REIMERS v. PETERSEN.

No. 46721.

Supreme Court of Iowa

May 7, 1946

Ross L. Sifford, of Carroll, and Douglas Rogers, of Manning, for appellant.

White & Bruner, of Carroll, for appellee.

HALE Justice.

Plaintiff in November, 1943, agreed to pay defendant $2 per month for the use of a space in the basement of his garage building in which other patrons' cars were stored. This basement extended from Main street on the east to an alley on the west, on which was the only car entrance 8 1/2 feet wide. The room was rectangular except for a portion cut off at the northwest corner, 30 feet east and west by 25 feet north and south. Dimensions of the basement room were: Beginning at the northeast corner, thence 62 1/2 feet south, thence west 130 feet, thence north 37 1/2 feet, thence east 30 feet and north 25 feet to exclude the offset, and thence east 100 feet. The south side of the west door was 21 feet north of the southwest corner of the basement.

Plaintiff rented the storage space for her car, and as she wanted to go in and out when she pleased, the proprietor, defendant furnished her a key to the door.

The rented space was at the extreme east side of the basement, straight ahead of the entrance door at the west, with some posts on each side of the passage-way. When she rented the space the defendant told her that she should always put her car in her own space and never put it in anyone else's because they had had trouble before. She had her car in her usual place on the night of December 8. Defendant's employees were working in the garage until about 3:45 in the morning. During the evening a driver of an ambulance owned by the State University hospital sought to store the vehicle in this garage. After some discussion he was allowed to place the ambulance in the basement storage room behind the car of plaintiff. The switch key was left in the ambulance. At 4:45 on the morning of December 9 a fire was discovered in the upper part of the building. The plaintiff, who lived a short distance away, was awakened and proceeded to the garage. She testified that she entered the basement three times, and that she started to back her car out but did not succeed, being blocked by the ambulance; and her car, with all the others in the basement except one, was destroyed.

The fire swept through the building rapidly. One witness, who arrived about five minutes after he heard the alarm, testified that the front end of the building was too hot to stay in eight minutes after the alarm. Another estimated that it was something like six minutes after the alarm that the basement had become too hot to enter. The car belonging to Mentzer which was located north and west of the ambulance, was the only one saved. There is no record that the defendant promised to keep the alleyway free, nor is there any explanation of how the fire was caused, and it is not claimed or shown that there was any service to be performed upon her car except once when she had some work done on the battery. Otherwise, she only rented and paid for the space where the car was stored.

The court, in its instructions, submitted to the jury as a ground of negligence, only the parking of the ambulance in the vicinity and back of the space where plaintiff's car was already parked. The jury returned a verdict for the defendant, and the plaintiff's motion for new trial was overruled and she appeals. Plaintiff, appellant, assigns various errors. We have found it difficult to consider her argument in relation to the assigned errors. We have, however, endeavored to consider such assigned errors as presented.

I. The court's instructions are assailed by general objections, complaining that some of the important facts are mis-stated, others not mentioned; that the questions raised were not presented to the jury; that applicable law should have been stated without request. But plaintiff, with one or two exceptions, fails to point out or specify wherein the court erred or failed to instruct. This complaint is too general to consider. One specified objection is that the court told the jury that defendant's employees 'permitted' the ambulance driver to park where he did instead of that they 'directed' him. But plaintiff, in her petition, states that they were 'directed and permitted'. We think the evidence of the conversation between the driver and employees warranted the use of the word 'permitted', nor was the use of the word of any serious consequence.

Plaintiff objects to the failure of the court to state to the jury the allegation of her petition that defendant permitted persons to smoke, notwithstanding the presence of gasoline and fumes, and permitted gasoline motors to remain in the room with motors running. But there was no evidence as to the cause of the fire, which did not originate in the basement.

The most serious objection to these complaints is that, except as to instruction 11, there was no exception taken to any instruction. The objections not having been presented to the court they cannot be considered here. We have, however, fully examined all the instructions and find that they satisfactorily presented the issues and the law, and we find no error as to them.

The objection to instruction 11, though informally made, may be considered. It is of course the general rule that each instruction must be read in connec tion with all others. The exception to instruction 11 consisted of a colloquy between the judge and the counsel when the first draft of the instructions was presented to them. As we gather from the record, plaintiff's counsel contended that defendant could not be relieved of liability because he did not foresee the result of the negligent parking, if it was a circumstance which ordinarily would be included and the hazard was there. Counsel said the instruction would seem rather narrow because it left a question as to what he (the defendant) might have anticipated rather than what an ordinarily prudent man would have anticipated, and suggested that the last clause of the instruction should be amended to read 'whether or not the defendant should have anticipated that the parking of the ambulance as it was parked might have resulted in the damage, is for you to determine; then determine whether the defendant should have anticipated the possible loss by fire if he had acted as a reasonable and prudent man'.

An examination of the instruction shows that this objection is without merit. The court, throughout the instruction referred not to what defendant...