Ronfeldt's Estate, In re

• Decision Date: 19 September 1967
• Docket Number: No. 52611,52611
• Citation: 261 Iowa 12,152 N.W.2d 837
• Parties: In the Matter of the ESTATE of Ray C. RONFELDT, Deceased. Arlene IRLBECK, Administrator of the Estate of Orville Irlbeck, Deceased, Appellee, v. Shirley RONFELDT, Executor of the Estate of Ray C. Fonfeldt, Deceased, Appellant.
• Court: Iowa Supreme Court

Page 837

152 N.W.2d 837

261 Iowa 12

In the Matter of the ESTATE of Ray C. RONFELDT, Deceased.

Arlene IRLBECK, Administrator of the Estate of Orville Irlbeck, Deceased, Appellee, v. Shirley RONFELDT, Executor of the Estate of Ray C. Fonfeldt, Deceased, Appellant.

No. 52611.

Supreme Court of Iowa.

Sept. 19, 1967.

Ross, Johnson, Stuart, Tinley & Peters, Council Bluffs, and Fred Louis, Jr., Harlan, for appellant.

David Green, Carroll, for appellee.

MASON, Justice.

This is a negligence action brought by administrator to recover for the death of her decedent, Orville Irlbeck, as a result of an accident which occurred when he was riding in a truck owned and being operated by defendant's decedent, Ray C. Ronfeldt. Trial to a Shelby County jury resulted in a favorable verdict for administrator. After overruling defendant's motions for judgment notwithstanding the verdict and in the alternative for new trial, judgment was entered against defendant on the verdict. Defendant appeals.

The issues on appeal relate to the status of plaintiff's decedent as a passenger in the truck at the time of the accident, the court's instruction on that issue, rulings on evidence and excessiveness of the verdict.

Where appropriate, plaintiff's decedent will be herein referred to as plaintiff and defendant's decedent as defendant.

I. The accident from which this action arose occurred about 1:30 p.m. January 8, 1964, on a county road near Exira, Audubon County, when defendant's truck left the road and went into a ditch. Plaintiff and defendant were killed.

The parties were returning to Irwin from Adair where defendant had gone to pick up a supply of water pipe. Plaintiff, 31 at the time of his death, and defendant both lived in Irwin. Plaintiff and his family had moved from a farm to Irwin in 1962 and lived there until his death. During that time, he worked as a laborer on tiling crews, on bridge construction and part-time for defendant whose business was drilling wells and installing pipe in farm and city wells.

On January 8 a Mr. Schwenneker, the operator of a wholesale plumbing and heating business in Adair, called defendant to advise him that his order of pipe had arrived. After receiving this call, defendant had a conversation with his wife, called a friend, Dean Henry, and asked if the wanted to ride along to keep him company. Henry was unable to make the trip. Defendant then went to plaintiff's house and asked Mrs. Irlbeck to see her husband. Plaintiff was still in bed, but after his wife called, got up, put on his work clothes and went out to talk to defendant. Defendant told plaintiff that he was going to Adair for pipe and asked, 'You want to ride down there with me? If you do, I will buy your dinner.' Plaintiff replied, 'I ain't working today, so I might as well.' After taking to defendant plaintiff returned to his house and shortly thereafter left with defendant.

Defendant had ordered a quantity of 1-inch steel water pipe. It comes in 21-foot lengths, banded five lengths to a bundle, weighing approximately 176 pounds. The banding at each end causes the pipe to lose some flexibility. The pipe had been delivered to the wholesaler by truck at a point a few blocks from the wholesaler's place of business. The total shipment weighed approximately 7200 pounds and was transferred by sliding the bundles from that truck to defendant's. The wholesaler, one or two of his employees, the other truck driver, plaintiff and defendant all helped load the pipe onto defendant's truck.

After the truck was loaded defendant drove to the wholesaler's place of business, picked up a box of fittings and started toward Exira, a distance of 20 miles. Defendant was proceeding in a westerly direction on a county highway, down a rather long hill, not too severe a grade but with a fairly good descent, to a bridge at the bottom. Defendant's truck went off the south side of the road and was found on the south side of the bridge, tipped over in the ditch about two miles west of Exira.

II. The administrator alleged in her amended claim filed in decedent's estate that plaintiff was accompanying defendant for the tangible benefit of defendant, plaintiff and defendant were engaged in hauling pipe for the mutual and tangible benefit of both and defendant was negligent in the operation of his truck. Defendant in answer denied these allegations and asserted plaintiff was riding as a guest and at his invitation.

In motions for directed verdict made at the close of plaintiff's evidence and renewed at the close of all evidence, defendant asserted plaintiff had failed to establish by any competent proof plaintiff's decedent was engaged in any operation for the mutual and tangible benefit of both at the time of the accident or that plaintiff's decedent had accompanied defendant's decedent for the owner and operator's tangible benefit.

The trial court withdraw the allegation of tangible and mutual benefit, overruled defendant's motion in other respects and submitted to the jury the issue as to plaintiff's status as an occupant of the truck. This ruling, in effect, held it was for the jury to decide whether plaintiff was accompanying defendant for the definite and tangible benefit of the owner or operator of the truck. Failure to have his vehicle under control was the only specification of negligence submitted.

Defendant asserted in her motion for judgment notwithstanding the verdict that she was entitled to a directed verdict at the close of all evidence, had moved therefore, and the jury did not return such a verdict. In the motion for a new trial defendant again asserted the court had erred in overruling her motion for directed verdict.

Defendant asserts the trial court erred in (1) overruling her motion for directed verdict and for judgment notwithstanding the verdict, (2) refusing to give her requested instruction 1 and overruling objections to court's instruction 4, (3) permitting the introduction of opinion testimony over defendant's objection and (4) failing to grant a new trial because of excessiveness of the verdict.

III. Under her first assignment of error defendant argues plaintiff's failure to establish her decedent was other than a guest while riding in Ronfeldt's truck barred recovery for ordinary negligence under the guest statute.

Code section 321.494 provides:

'Guest statute. 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.'

No contention is made that Ronfeldt was under the influence of intoxicating liquor when the accident happened, no recovery is sought under the statute on that basis.

In Knutson v. Lurie, 217 Iowa 192, 195--197, 251 N.W. 147, 149, we held the occupant of an automobile driven by another is neither a guest nor mere invitee when he is riding therein (1) when performing his duties as a servant of the owner or operator of the car; or (2) for the definite and tangible benefit of the owner or operator; or (3) for the mutual, definite and tangible benefit of the owner or operator on the one hand, and of the occupant on the other. It has been cited many times upon this proposition. Thuente v. Hart Motors, 234 Iowa 1294, 1302, 15 N.W.2d 622, 627; Stenberg v. Buckley, 245 Iowa 622, 630--631, 61 N.W.2d 452, 456--47 and citations; McBride v. Dexter, 250 Iowa 7, 9, 92 N.W.2d 443, 444; Murray v. Lang, 252 Iowa 260, 267, 106 N.W.2d 643, 647; Nielsen v. Kohlstedt, 254 Iowa 470, 474, 117 N.W.2d 900, 903. This enumeration is not exclusive, and setting it out is not meant to so indicate. Powers v. Hatcher, 257 Iowa 833, 836, 135 N.W.2d 114, 116.

That case recognizes a fourth category, i.e., where the relationship between operator and passenger is that of co-employees in furtherance of their employment in transportation as directed by their employer, they are not guest and host.

One who rides in a motor vehicle for the definite and tangible benefit of the owner or operator is not a guest within the meaning of the guest statute and recovery for injuries suffered by such rider may be based on the negligence of the operator. Morrow v. Redd, 257 Iowa 151, 131 N.W.2d 761, 763 and citations.

Of course, one who claims the guest statute is not applicable has the burden to prove his status was other than a guest. Vipond v. Jergensen, Iowa, 148 N.W.2d 598, 606. Not only does plaintiff have the burden to establish his status, the acting being predicated upon negligence of the operator or owner, but there is a presumption rebuttable, that he was a guest within the meaning of section 321.494. Murray v. Lang, 252 Iowa 260, 266--267, 106 N.W.2d 643, 647; Delay v. Kudart, 256 Iowa 523, 525, 128 N.W.2d 201, 202.

When benefits are to be considered, we have said such benefits to the operator or owner as are incidental to hospitality, social relations, companionship or the like are not definite and tangible benefits as are contemplated by the rule. Nielsen v. Kohlstedt, supra; Powers v. Hatcher, supra, 257 Iowa at 837, 135 N.W.2d 114.

It is true the benefit to be received by the owner or operator need not be the only purpose or sole motivating factor in furnishing transportation, it need only be a substantial factor. Delay v. Kudart, supra, 256 Iowa at 528, 128 N.W.2d at 204.

With reference to the benefit required, in Ritter v. Dexter, infra, 250 Iowa at 836, 95 N.W.2d at 283, we quoted from McUne v. Fuqua, 42 Wash.2d 65, 253 P.2d 632, 636. There it is stated:

'This requirement does not mean that the Taking of the trip must be motivated by the expectation of receiving the benefit. It need only be shown that the Furnishing of transportation to the passenger was motivated by such expectation. Nor does it mean that the...