Sauer v. Scott

• Decision Date: 07 April 1970
• Docket Number: No. 53373,53373
• Court: Iowa Supreme Court
• Parties: Carlos SAUER, Appellant, v. Thomas L. SCOTT, Appellee.

Page 140

176 N.W.2d 140

Carlos SAUER, Appellant, v. Thomas L. SCOTT, Appellee.

No. 53373.

Supreme Court of Iowa.

April 7, 1970.

Rehearing Denied June 22, 1970.

John D. Randall and John R. Hughes, Cedar Rapids, for appellant.

Wayne C. Collins, Cedar Rapids, and Keith Mossman, Vinton, for appellee.

BECKER, Justice.

Plaintiff brings action for personal injuries received while a passenger in defendant's automobile. In Division I he alleges he was not a guest and predicates his action on negligence; in Division II he alleges he was a guest and predicates his action on recklessness and in Division III he alleges he was a guest and predicates his action on defendant operating a motor vehicle while under the influence of intoxicating liquor. At the close of plaintiff's evidence the court directed the verdict on Division III but submitted the allegations of Division I and II to the jury. The jury found for defendant and plaintiff's motion for a new trial was overruled. We reverse and remand for retrial.

Plaintiff Sauer, defendant Scott and one Oliver Gravemann all worked for the same truck line. Additionally, Sauer intended to drive a truck for Scott when it was delivered. He could make more money that way. Gravemann's wife was expecting a child and the men agreed to celebrate when the baby was born.

In a discovery deposition, defendant Scott testified he left his home some time after 8:00 p.m., December 10, 1965, drove around for awhile and then went to the Tip Top Tavern where he found Mr. Gravemann. Scott had two vodka sours and then telephoned Mr. Sauer. Plaintiff's wife took the call. When Scott asked to talk to plaintiff, Mrs. Sauer twice said, 'No.' Defendant then said, 'God dam it, I want to talk to him.' Mrs. Sauer handed the phone to her husband. Scott asked Sauer to come to the Tip Top Tavern and he, plaintiff, said, 'No.' Scott called Oliver Gravemann to the phone and Gravemann said, 'Either come down or I am coming up.' Sauer could tell from Gravemann's voice that Gravemann had been drinking and he thought Gravemann would come to the house. Therefore he dressed and went down to the tavern. After the conversation the defendant Scott played pool with Gravemann, had three more vodka sours and a double shot of brandy.

Plaintiff Sauer came in while the men were playing pool and sat in a booth. He had a quart of beer, part of which Gravemann drank, and a bottle of beer that he drank himself. Plaintiff knew defendant had two or three vodka sours and a double shot of brandy while playing pool. Gravemann became obviously intoxicated but defendant appeared to be all right. Defendant asked Sauer to drive the Scott car to Dysart where Gravemann lived while he, Scott, drove Gravemann and his car to the Gravemann home. Plaintiff Sauer took Scott's car and went to Dysart, met Scott at the Gravemann home and left there as a passenger in Scott's car.

Before leaving the Gravemann vehicle, defendant told plaintiff to get a bottle of While at the service station they were joined by a Mrs. Reiferstahl. At this time defendant noticed the heat indicator on his car was red. He opened the hood and looked at the motor but did nothing to it. He closed the hood, got in the car and asked plaintiff to ride along with him to see if the car would quit hearing up. Defendant, with Mrs. Reiferstahl and plaintiff as passengers, drove to the nearby town of Mt. Auburn.

whiskey and some 7-Up out of the Gravemann car and they would have a drink on the way back to Vinton. Plaintiff complied, poured the whiskey into a 7-Up bottle for Scott and fixed a similar drink for himself. This happened shortly after 11:00 p.m. The two then returned to Vinton, drove around town for awhile and stopped at a Standard Oil service station at about midnight.

When they left the station the drink plaintiff had mixed for defendant had not been finished. Defendant had one more drink from it and Mr. Reifenstahl finished the drink. Defendant did not appear to be intoxicated at any time and plaintiff 'thought he was all right.' The weather was foggy as they drove to Mt. Auburn. On the return trip it continued foggy. At the first curve out of Mt. Auburn plaintiff asked defendant to slow up: '* * * 'I didn't care for that speed in that kind of weather' * * *. At that time it was getting real dense. I don't know which beams, high or low, Tom had on.'

Plaintiff doesn't know whether or not defendant actually slowed his speed. The fog got denser to where 'you couldn't see the edge of the road'. Plaintiff again told defendant to slow down. Again he doesn't know if defendant actually slowed down but remembers defendant saying, 'We are not goint to make it.' Plaintiff's next recollection was coming to his senses in the hospital in Iowa City.

Mrs. Reifenstahl testified the car was going 30 to 40 miles per hour in dense fog immediately prior to the accident. Defendant said, 'We are going to hit the ditch.' Plaintiff opened the door on the right side and left the car. She left the car with him but does not know if plaintiff pulled her out or if she was thrown out.

The sheriff was called to the scene at about 1:15 a.m. The weather was real foggy and he drove at 25 miles per hour which he considered really too fast. From his observation of tire marks on the shoulder he opined the car left the highway on a curve, traveled some distance on the shoulder (later determined to be 'about' 150 to 200 feet) came back onto the highway and went into a spin, traveled in the ditch ('about' 75 to 100 feet), hit a cross-road and stopped. Two other cars went into the ditch at or near the same location that night. Plaintiff was seriously injured but the nature and extent of his injuries are not pertinent to this appeal.

STATUS

I. Plaintiff complains of undue restriction placed upon him by the court in connection with his argument to the jury as to plaintiff's status as a guest or passenger. The prejudicial effect of such errors depends on the first instance on whether the evidence generated a jury case predicated on the issue.

The trial court indicated he doubted there was sufficient evidence to carry the case to the jury on the theory plaintiff was not a guest but submitted the question as recommended in Florke v. Peterson, 245 Iowa 1031, 65 N.W.2d 372. The court stated the matter would be reconsidered on post verdict motion. Under the entire record we hold the court was correct in submitting the issue of guest versus passenger to the jury but had the jury found plaintiff to be a passenger the finding would have had to be set aside. In considering such an issue we view the evidence in the light most favorable to the party against whom the motion to direct the verdict was taken. Rule 344(f)(2), Rules of Civil Procedure. Portions of the There is a rebuttable presumption a passenger is a guest. Plaintiff has the burden to prove the guest statute is not applicable. It is clear plaintiff did not pay for the ride, was not acting as servant of the operator or owner and was not a co-employee in furtherance of common employment as directed by a common employer. Plaintiff must rely on a claim his presence was for a definite and tangible benefit to the owner or operator or a mutual, definite and tangible benefit to plaintiff on one hand and to defendant on the other. Jackson v. Brown (Iowa) 164 N.W.2d 824, 826; Ross v. McNeal (Iowa) 171 N.W.2d 515, 517. The rules in this field have been oft repeated. It is the application of the rules to the facts that causes the difficulty. Even when the facts are not in dispute, if reasonable minds might draw different inferences from them, a jury question is engendered. Rule 344(f)(17), R.C.P.

foregoing factual recitation are the subject of dispute. In those areas we have accepted the interpretation most favorable to plaintiff.

The evidence here is not sufficient to generate a jury question. Plaintiff's petition states: '* * * (T)he trip was for the sole benefit of defendant and plaintiff accompanied him to assist him in any manner necessary to correct the difficulty with defendant's automobile.' Plaintiff's only testimony on the issue was : 'The purpose of the trip to Mt. Auburn was to see what was really wrong with that car, if it was just from idling or heating up of it; to see what was wrong with it. * * *.' His intended function was not explained. Defendant and Mrs. Reifenstahl both testified defendant did not request plaintiff to go along but simply announced he was going and why. Taking plaintiff's testimony in its best light there is no showing by evidence, direct or circumstantial, that plaintiff's status was any different than it had been all evening; i.e., a friend socializing with another friend.

The trial court prohibited plaintiff's attorney from arguing the circumstances of the early part of the evening. We agree the relationship during the entire evening was revelant but this error cannot help plaintiff here. There is nothing in the early evening activities to indicate motivation other than companionship. There is no testimony tying the evening project to the men's common employer or employment and no evidence of any tangible beneficial purpose (other than socializing) to take plaintiff out of the guest statute. In this circumstance we hold the restrictions placed on plaintiff's attorney in argument on this issue constituted harmless error.

DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR

II. As a guest plaintiff must show damage caused by recklessness or by operation of the car while under the influence of intoxicating liquor. On the intoxicating liquor division the court directed a verdict for defendant. This was error.

Throughout his testimony plaintiff stated defendant did not appear to be intoxicated, did not have any difficulty in driving. The trial court ruled: 'The plaintiff testified that he did not consider defendant was intoxicated; that nothing that he did in his driving worried him, and, 'I thought it was all...