Stam v. Cannon, 53610

• Decision Date: 05 May 1970
• Docket Number: No. 53610,53610
• Citation: 176 N.W.2d 794
• Court: Iowa Supreme Court
• Parties: Lawrence M. STAM, Appellee, v. Merlyn CANNON, Appellant.

Page 794

176 N.W.2d 794

Lawrence M. STAM, Appellee, v. Merlyn CANNON, Appellant.

No. 53610.

Supreme Court of Iowa.

May 5, 1970.

Ross H. Sidney, Des Moines, and Robert L. Fulton, Leon, for appellant.

James W. Brown, Osceola, for appellee.

UHLENHOPP, Justice.

We have here to decide several questions which arose in the trial of a rear-end automobile collision case.

Lawrence M. and Wilma Stam are husband and wife. For several years prior to the collision they operated a farm which they were buying on contract. For a time Mr. Stam also worked in a sale barn and had a trucking business. Until shortly before the collision, Mrs. Stam had not worked off the farm for several years. Their income went into a common bank account.

As of the time of the collision on February 25, 1966, both of the Stams had employment off the farm. Mr. Stam ran a caterpillar tractor for Don Christenson, an earth mover. At the time Christenson was removing overlay in a rock quarry of Jackson's Incorporated. Mrs. Stam was weighmaster in the quarry for Jackson's. Christenson's earth moving business and Jackson's quarry were separate enterprises.

Previous to September 29, 1965, two motor vehicles were titled in Mrs. Stam's name, a pickup truck and a Valiant car. Mrs. Stam saw an advertisement for the sale of an Econoline truck by White's Motor Company of Lamoni, Iowa, and on that date she traded the pickup truck plus cash for the Econoline. The cash difference was paid from funds which were borrowed from a bank on a note signed by both Stams. The note was eventually paid from funds in the common bank account. Title to the Econoline was taken in Mrs. Stam's name.

Both spouses used the Econoline and Valiant as needed. When Mrs. Stam drove and Mr. Stam was along, she complied with his wishes about driving, if he expressed any. Usually he did not talk much.

On the morning of February 25, 1966, Mr. and Mrs. Stam were traveling south in the Econoline on highway 204, he to his job with Christenson and she to hers with Jackson's. She was driving. South of Garden Grove, Iowa, they came upon Merlyn Cannon, driving his Plymouth station wagon in the same direction at a slower speed.

The previous day Mr. Cannon had taken a tractor tire to Garden Grove for repair and on the way back had lost the tire out of his car. On the morning of the collision he and his wife were going over the route in search of the tire. They were watching the ditches.

The jury could find that Mrs. Stam was driving about 50 miles per hour and that she slowed down and followed Cannon through a no passing zone about two or three car lengths to the rear. After traversing that zone she speeded up to pass going downhill, but Mr. Cannon also increased his speed somewhat. She was unable to pass before the next no passing zone, and turned in behind him again. At about that time Cannon saw his lost tire in the left ditch, was temporarily distracted from his driving, and put on his brakes; and his car came over toward the yellow line.

The jury could find that Mrs. Stam was about 60 feet behind Cannon when she saw his brake lights go on, and according to her, 'things happened pretty fast.' She slammed on the brakes and swerved left to avoid the Plymouth. But since the Plymouth also moved left when Cannon was preoccupied with the tire, the right front of the Econoline struck the rear of the Plymouth 11 inches in from the left corner. Mr. Stam sustained personal injuries for which this action was brought.

Subsequently the damaged Econoline was replaced by another vehicle, which was titled in Mr. Stam.

On submission of the case, the trial court instructed that Mrs. Stam's negligence would not preclude recovery by Mr. Stam unless it was the sole proximate cause; Cannon would be negligent if he materially reduced his speed when he knew or should have known the other car was so close a collision would probably result; Cannon was obligated to drive at a careful speed in the light of a number of enumerated circumstances; and Cannon was required to have his car under control. The court did not submit Mr. Stam's charge that Cannon was negligent in failing to give a proper signal.

Counsel agreed to a sealed verdict, and they and the judge departed for their respective homes in other counties. The jury had difficulty deciding the case, and about 11:00 p.m. the foreman asked the bailiffs to let him telephone the judge. This was permitted, and the foreman informed the judge the jury was having some trouble with liability. The judge told the foreman to go back and read the instructions, and the conversation ended. Within an hour the jury returned a verdict for Stam.

Cannon moved for a new trial, but the trial court denied one. Hence this appeal by Cannon.

Six legal problems are presented: (1) Could the jury have found that Stam was owner or co-owner of the Econoline? (2) Was joint venture by Stams for the jury? (3) Should the trial court have covered the matter of signal in connection with the instruction on reduction of speed? (4) Did the trial court unduly emphasize speed? (5) Was there evidence of lack of control? and (6) Did the communication between the judge and foreman require a new trial?

I. As to ownership of the Econoline, Cannon contends Stam could have been found at least co-owner so as to have a 'right of control' under Phillips v. Foster, 252 Iowa 1075, 109 N.W.2d 604. Cannon thus seeks to impute Mrs. Stam's negligence to Mr. Stam. The trial court rejected the contention.

In our statutes on motor vehicles it is provided by Code, 1966, section 321.1(36):

"Owner' means a person who holds the legal title of a vehicle, or in the event a vehicle is the subject of a Security Agreement with an immediate right of possession vested in the debtor, then such debtor shall be deemed the owner for the purpose of this chapter.'

It is further provided by section 321.45(2):

'No person shall acquire any right, title, claim or interest in or to any vehicle subject to registration under this chapter from the owner thereof except by virtue of a certificate of title delivered to him for such vehicle; nor shall any waiver or estoppel operate in favor of any person claiming title to or interest in any vehicle against a person having possession of the certificate of title or manufacturer's or importer's certificate for such vehicle for a valuable consideration (with four exceptions not applicable here). Except in the above enumerated cases, no court in any case at law or equity shall recognize the right, title, claim or interest of any person in or to any vehicle subject to registration sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer's or importer's certificate duly issued or assigned in accordance with the provisions of this chapter.'

When White's Motor Company sold the Econoline, title was placed in Mrs. Stam. No one suggests this was done over Mr. Stam's protest or that he was defrauded in any way. Title was simply placed where Stams wanted it placed. Under the plain language of the statute, Mrs. Stam was the owner and no court in any case at law or in equity could recognize any other right, title, claim, or interest. Calhoun v. Farm Bureau Mutual Ins. Co., 255 Iowa 1375, 125 N.W.2d 121. The trial court correctly so held.

II. As to joint venture, Cannon contends that Stams were engaged in a common enterprise so that Mrs. Stam's negligence was Mr. Stam's negligence. Again the trial court rejected the contention. Is there evidence of joint venture here? Cases in which the passenger owned the car in which he was riding may be placed side. Likewise to be put aside are cases involving a passenger's own negligence in not exerting power which he in fact had over the driver, apart from a legal right of control. Restatement, Torts 2d sec. 495. The trial court covered Stam's own duty of care in instruction 9. The issue here relates to Mrs. Stam's negligence and to charging it to Mr. Stam.

At an early day this court rejected the rule in Thorogood v. Bryan, 8 C.B. 115, 137 Eng.Rep. 452. See Nesbit v. Town of Garner, 75 Iowa 314, 39 N.W. 516. Thus we start with the premise that a passenger ordinarily is not barred by his driver's negligence from recovering from a third person whose negligence proximately causes harm. Restatement, Torts 2d sec. 485.

To this general principle are exceptions, and one is joint venture. That exception is based on the passenger's 'right of control' over the driver. It is frequently stated, 'The fundamental doctrine controlling this question of joint adventure or common enterprise is not controlled by the fact that the parties are going to the same place on the same mission, but by whether or not the complaining party bore such relation to his associate as that he had the right of control in some manner over the means of locomotion.' Stingley v. Crawford, 219 Iowa 509, 512, 258 N.W. 316, 318. But what relationship give the passenger the 'right of control' under the law?

By the process of exclusion, a number of relationships may be eliminated. As Justice Weaver said for this court when joint venture was asserted in Bridenstine v. Iowa City Electric Ry., 181 Iowa 1124, 1133, 165 N.W. 435, 438, 'Whatever may have been the rule of earlier years, the doctrine of imputed negligence has only a very restricted application in this state.' Thus marital relationship does not itself give the right of control, though the spouses are proceeding to the same destination. Mathews v. Beyer, 254 Iowa 52, 116 N.W.2d 477. Contribution by the passenger by buying gasoline does not give him the right of control. Russell v. Chicago, R.I. & P.R.R., 251 Iowa 839, 102 N.W.2d 881. Showing the driver the way to his destination does not establish a 'right' of control. Churchill v. Briggs, 225 Iowa 1187, 282 N.W. 280. Even joint possession of the car does not show right of control. Davidson v. Cooney, 259 Iowa 1278, 147 N.W.2d 819 (car lent...