Sebastian v. Wood, No. 48586

• Court: United States State Supreme Court of Iowa
• Writing for the Court: BLISS
• Citation: 246 Iowa 94,66 N.W.2d 841
• Docket Number: No. 48586
• Decision Date: 16 November 1954
• Parties: Marie SEBASTIAN, Appellee, v. Cecil WOOD, Appellant.

Page 841

66 N.W.2d 841 246 Iowa 94 Marie SEBASTIAN, Appellee,
v.
Cecil WOOD, Appellant. No. 48586. Supreme Court of Iowa. Nov. 16, 1954.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, and B. C. Sullivan, Rockford, for appellant.

Westfall, Laird & Burington and Gilbert K. Bovard, Mason City, and Elwood, Anderson & Elwood, Cresco, for appellee.

BLISS, Justice.

About 10:30 p. m. on March 20, 1952, Donald Sebastian, husband of plaintiff, was driving his Ford automobile east on paved

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Highway No. 9. Mrs. Sebastian was in the front seat holding their sleeping three-year-old son. Their six-year-old daughter was asleep in the back seat. The car was traveling on the right or south lane of the pavement at a speed of about 45 to 50 miles an hour. They were returning from Mason City where they had left Mr. Sebastian's mother in a hospital. When about eight miles west of Osage they saw the headlights of an automobile in its proper lane approaching from the east at about the same speed that they were going. As the car approached it came over onto the south half of the pavement, and Mr. Sebastian then drove his car off the pavement entirely onto its south shoulder. [246 Iowa 96] As the other car continued to veer to the south and onto the south shoulder, Mr. Sebastian turned his car clear back onto the south half of the pavement in an attempt to avoid a collision, and when he did so the driver of the other car drove his car to his right onto the south half of the pavement, where the cars came together head-on. Sebastian applied his brakes when he saw he couldn't get out of the way and the care stopped at the place of impact. Defendant was operator of the west-bound car.

Mr. Sebastian was thrown over the steering wheel and his right knee broke off the heater control under the dash. It was a very cold night. Plaintiff struck the windshield with the side of her face and slumped to the floor motionless. The little boy was thrown on top of the heater. Mr. Sebastian procured a flashlight from defendant and after sometime stopped a motorist who took plaintiff and the children to the hospital at Osage. Plaintiff was seriously injured, and disfigured about the face. She received surgical attention and more plastic surgery will be required.

A highway patrolman arrived shortly after the collision. He testified that: both cars were on the south side of the pavement; the Wood car was almost completely on the south shoulder, with the right front wheel on the pavement; the Sebastian car was completely on the pavement and 'pretty near on the south side of the road a little more towards the center'; Mr. Sebastian returned from the hospital while the patrolman was there; when he arrived Cecil Wood was sitting behind the wheel of his car with another man beside him; there was some blood on defendant's face but he said he wasn't hurt; both men remained in defendant's car while he investigated matters, until he asked them to step out; 'when Cecil Wood stepped out he was very unsteady. I had observed when I first talked to him that he smelled very strongly of liquor when he was sitting in the car, and his eyes, the pupils, were very dilated at the time and his speech was incoherent and it was just a little difficult to get exactly what he was saying. He acted kind of like he was in a stupor, but when I got him out and looked him over, he had a hard time standing and was very unsteady on his feet. He had all of the actions of a person that was very intoxicated. I found two or three cases of beer, as I remember it in his car and I believe there was some whiskey too. I had Wood and his companion [246 Iowa 97] get in our car, and when we got into Osage, I had a blood test taken. I kept the blood in my possession and turned it over to Dr. Morgan at his office in Mason City. Until I turned it over it was in my possession at all times. As a member of the Iowa Highway Patrol I have had occasion in many instances to observe intoxicated persons. In my opinion, Cecil Wood was on the night in question intoxicated when I observed him. The result of his blood test was 208 milligrams of alcohol to 100 centigrams of blood.' Defendant's companion was intoxicated and such charge was filed against him.

It was stipulated that defendant pleaded guilty in the district court of Mitchell County, Iowa, to the crime of driving a motor vehicle while intoxicated on the public highways of Iowa, at the time of the collision. The defendant, as a witness for himself in the trial of this case, testified that he was intoxicated while driving his automobile at said time and place.

Two other young men, both adults, were witnesses for plaintiff. We will refer to

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the testimony of but one of them, as they were in complete agreement. Clinton Mitchell, married and employed in Osage, testified that: in the late evening of March 20, 1952, he was driving his automobile, accompanied by Junior North, on Highways No. 9 and 218, going west into Osage: 'I first saw the Cecil Wood car when it was about a quarter mile outside the city limits of Osage * * *. When I first saw the Cecil Wood car, it was about straddle of the black line, and as it advanced on westward, he went to the left-hand side of the road there, and right in front of a body shop on the east edge of Osage, he was clear over on the left-hand side of the road. He was about to meet a semi-trailer and the semi-trailer went clear off the road and he avoided an accident. Then he went back on his own side of the road, and then again back across on the other side on the rest of the way through Osage. I would say I followed him about a half a mile when he was in the city limits of Osage. I followed him through the business district. During the course of following him for approximately a half a mile, I would say that he went to the left half of the pavement about four or five times. We had followed him pretty well through the business district. After we quit following him, we went over to the sheriff's office, but the sheriff and his deputy were gone, so we reported the license number[246 Iowa 98] to the sheriff's wife. Then we went back uptown and had lunch. After we left the cafe we saw a policemen who told us about an accident and so we went out to see if it was the car that we had been following. We found it happened about eight miles west of Osage on Highway No. 9. I noticed it was the Cecil Wood car and the same one that we had followed through Osage. It had the same license number we had taken down.'

I. Plaintiff pleaded her cause of action in two divisions, the first one being on her individual claim, and the second on the claim which her husband assigned to her. In each division were the following allegations: 'That said Cecil Wood was negligent in the following particulars, which negligence was the proximate cause of said accident and the resulting injuries:

'1. In failing to keep a proper lookout.

'2. In failing to have his car under control.

'3. In failing to give one half of the traveled way by turning to the right when meeting the car in which this plaintiff was riding.'

By amendment the following was added to each division:

'Par. 2a. The defendant also knowingly and willfully drank intoxicating liquor, became intoxicated and thereafter knowingly and willfully drove his vehice in a reckless, wanton, and grossly negligent manner, all of which was the proximate cause of the accident herein referred to and the resulting injuries.'

Defendant's motion to strike these allegations was overruled. By answer he admitted the collision but denied all other allegations of the petition as amended.

II. Defendant assigned two errors. Number one being: 'The Court erred in giving Instruction No. 12 which permitted the jury to award exemplary damages.'

'No. 2. The Court erred in giving Instruction No. 12 in permitting the jury to award exemplary damages based on the fact that the driver of the automobile was intoxicated at the time of the collision in which Plaintiffs were injured. In the case at bar Defendant admitted his intoxication and pleaded guilty to operating a motor vehicle while intoxicated, and was duly sentenced.'

[246 Iowa 99] Defendant asserts that 'it is a well settled rule of law in this State that before the question of exemplary damages may be properly submitted to the jury that malice must be alleged and proven,' and that 'in the case at bar malice was alleged, but was not proven as the record is bare as to any proof whatsoever of malice'.

We will discuss the two errors relied upon together. Defendant assigns no others, and challenges the judgment in no other

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respects. Instruction No. 12, of which defendant complains, is herein set out in full:

Instruction No. 12

'The plaintiff in each Division of her petition has asked to recover over and above her actual damages what is known in law as exemplary damages. You are instructed that the law of this State permits but does not require a jury to allow exemplary damages in certain cases if it is found by the jury that the act of the defendant causing the injury complained of is wanton, reckless and grossly negligent. By wanton and reckless, as these terms are used in this case, is meant something more than negligence, but is meant that an act is done in such a manner and under such circumstances as to show heedlessness and an utter disregard and abandon as to what result may flow from the doing of an act or from the manner in which it is done.

'Exemplary damages are not compensatory in the ordinary sense, but are allowed by way of punishment to restrain the defendant and others from the commission of like acts in the future.

'So in this case if you find from the evidence that the defendant drank intoxicating liquor and became intoxicated and then drove his car while so intoxicated as to make his conduct in driving upon a public highway wanton, reckless and grossly negligent as those terms are defined herein, you...