Shoop v. Hubbard, 52230

• Decision Date: 13 December 1966
• Docket Number: No. 52230,52230
• Citation: 147 N.W.2d 51,259 Iowa 1362
• Parties: Sandra SHOOP, Appellee, v. Helen Marie Kuppinger HUBBARD, Appellant.
• Court: Iowa Supreme Court

Page 51

147 N.W.2d 51

259 Iowa 1362

Sandra SHOOP, Appellee, v. Helen Marie Kuppinger HUBBARD, Appellant.

No. 52230.

Supreme Court of Iowa.

Dec. 13, 1966.

Rehearing Denied Feb. 6, 1967.

Westfall, Laird & Burington, Mason City, for appellant.

Warren L. DeVries, Mason City, for appellee.

MOORE, Justice.

This guest case was submitted to the jury on both recklessness and defendant-driver being under the influence of intoxicating liquor. The jury answered interrogatories finding defendant was not intoxicated but guilty of reckless driving. From judgment on verdict for plaintiff, defendant has appealed.

The sole issue presented on this appeal is whether the evidence was sufficient to create a jury question on recklessness.

Since the enactment of our guest statute in 1927 we have written scores of opinions construing it and announcing definitions and elements of recklessness. The earliest and most cited case which defines recklessness as applied to the statute is Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46 (1931). Judge Graven in Russell v. Turner, D.C., 56 F.Supp. 455 (1944) thoroughly reviews our opinions, the applicable principles and definitions, and lists in detail the cases wherein we hold the evidence sufficient to justify submission of a guest's case to the jury as well as those in which we hold to the contrary. Later our decisions are reviewed in a 1959 article written by William G. Wheatcraft in 8 Drake Law Review 128, entitled 'Recklessness in the Iowa Guest Statute'. See also Anno. 6 A.L.R.3rd 769, entitled 'Speed, Alone or in Connection with Other Circumstances, as Gross Negligence, Wantonness, Recklessness, or the Like, under Automobile Guest Statute' and Anno. 6 A.L.R.3rd 832, entitled 'Gross Negligence, Recklessness, or the Like, Within 'Guest' Statute, Predicated upon Conduct in Passing Cars Ahead or Position of Car on Wrong Side of the Road'.

Many of our more recent pronouncements on the legal principles involved in the question now before us are cited in the splendid briefs filed by counsel. They indicate no real disagreement on the law to be applied. From the long history of our guest statute litigation we believe these principles are now well established.

Reckless operation of a motor vehicle as used in our 'guest statute', section 321.494, Code 1962, means more than negligence, more than want of ordinary care. It means, proceeding with no care coupled with disregard for consequences, the acts must manifest a heedless disregard for or indifference to the rights of others in the face of apparent danger or so obvious the operator should be cognizant of it, when the consequences of such actions are such an injury is a probability rather than a possibility. Recklessness may include willfulness or wantonness, but if the conduct is more than negligence it may be reckless without being willful and wanton. The elements of recklessness are: (1) No care coupled with disregard of consequences, (2) there must be evidence of defendant's knowledge, actual or chargeable, of danger and proceeding without any heed of or concern for consequences, and (3) the consequences of the actions of the driver are such that the occurrence of injury is a probability rather than a possibility. We have required evidence of a persistent course of conduct to show no care with disregard of consequences. If it were not so required we would be allowing an inference of recklessness from every negligent act. Kauzlarich v. Fitzwater, 255 Iowa 1067, 1069, 1070, 125 N.W.2d 205, 206; Delay v. Kudart, 256 Iowa 523, 530, 128 N.W.2d 201, 205; Martin v. Cafer, 258 Iowa 176, 138 N.W.2d 71, 73, 74; Clark v. Marietta, 258 Iowa 106, 138 N.W.2d 107, 111, and citations in each.

It is not for us to determine whether defendant was reckless. Our review is not de novo but for correction of errors at law. Rule 334, Rules of Civil Procedure. Our function is to decide whether the evidence is such that an inference of recklessness may be fairly drawn therefrom. Tuttle v. Longnecker, 258 Iowa 393, 138 N.W.2d 851, 854, and citations. Only the evidence most favorable to plaintiff is considered whether or not contradicted. Lewis v. Baker, 251 Iowa 1173, 1177, 104 N.W.2d 575, 577; Kauzlarich v. Fitzwater, supra, 255 Iowa 1067, 1069, 125 N.W.2d 205, 206. Plaintiff has burden to prove defendant's recklessness. Goodman v. Gonse, 247 Iowa 1091, 1099, 76 N.W.2d 873, 877; Kauzlarich v. Fitzater, supra.

With these principles in mind we go to the evidence and the difficult question of determining whether from the facts shown an inference of recklessness may be fairly drawn. Defendant contends her motion for directed verdict and for judgment notwithstanding the verdict should have been sustained on the ground the evidence was insufficient to create a jury question on recklessness.

The evidence taken in its most favorable light for plaintiff shows that on Friday evening, February 2, 1962 Mary Kay McDonough picked up her Mason City High School friend, defendant, Helen Marie Kuppinger (now Hubbard) after which they visited Helen's mother at a local hospital. On leaving the hospital they drove around and each drank a can of beer. They then picked up plaintiff, Sandra Malfero (now Shoop) and Barbara Fraser. These four high school friends had planned to ride around together that evening but had no special plans. After traveling around Mason City in the McDonough car the four girls procured six bottles of beer at a supermarket and then went to the Kuppinger residence where they changed to defendant's brother's 1958 Ford and she became the driver. Defendant, then 17, had taken driver's training and had been driving for about a year.

After leaving the Kuppinger residence some of the beer was consumed by the girls. Defendant drank one bottle. The four girls shortly thereafter went to a drive-in where each had something to eat and drink. Defendant had a cheeseburger, french fries and a soft drink. They then decided to drive to Clear Lake to see Gary Shoop, now plaintiff's husband.

After purchasing gasoline they proceeded toward Clear Lake on highway 18. The testimony regarding the condition of the highway is in conflict. Several witnesses described it as dry but with some icy spots. A highway patrolman and Gary Shoop described it as frost covered and exceptionally slippery, practically greasy. Under the stated rule we must consider the road condition as described by the patrolman and Shoop.

To go from Mason City to Clear Lake the girls traveled an east to west direction and shortly before reaching the point of the accident the highway curves and then goes in a southwesterly direction. The accident happened on this southwesterly stretch where the highway is level and straight. It then curves to the right some distance from the scene.

For about a mile before the accident they followed a panel truck driven by Robert Davis at a distance of approximately three car lengths. Over the same distance the Kuppinger car was followed by an automobile driven by Clair A. Beenen. His car was about a half mile behind that of the girls. The three vehicles remained the same distances apart until just immediately before the accident and were traveling 45 to 50 miles per hour. All were traveling on their right half of the 24 foot wide black top road surface. No unusual movements were made by the Kuppinger car until it started to pass the panel truck.

The accident occurred about a half mile west of the entrance to the Mason City airport and east of the Clear Lake city limits when defendant accelerated the speed of her vehicle and attempted to pass the panel truck. As she did so the automobile went into a skid and spin,...