Stanbery v. Johnson

• Citation: 218 Iowa 160,254 N.W. 303
• Decision Date: 03 April 1934
• Docket Number: No. 41837.,41837.
• Parties: STANBERY v. JOHNSON.
• Court: United States State Supreme Court of Iowa

218 Iowa 160

254 N.W. 303

STANBERY

v.JOHNSON.

No. 41837.

Supreme Court of Iowa.

April 3, 1934.

Appeal from District Court, Cerro Gordo County; M. F. Edwards, Judge.

An action to recover damages for personal injuries alleged to have been sustained by Alma Hendon, a guest in the car of the defendant, in an automobile accident. From a verdict in favor of the plaintiff, the defendant appeals.

Reversed.Harvey J. Bryant, of Mason City, and Putnam, Putnam, Langdon & Fillmore, of Des Moines, for appellant.

Stanley L. Haynes and Senneff, Bliss & Senneff, all of Mason City, for appellee.

ALBERT, Justice.

The jury would be warranted in finding the following facts, under the record in this case:

The appellant, Kenneth Johnson, was the owner of a Studebaker coupé, equipped with a rumble seat. This car was known to Johnson to be defective, in that, because of the loose steering gear, when the car was driven at a certain speed it would “shimmy” and would turn to the left when the brakes were applied.

On the 19th of July, 1931, Alma Hendon became a guest in said car, at Mason City, Iowa. The purpose of the trip was to transport Marjorie Wren to her home in Cresco. When the trip was initiated, Johnson was driving the car, and Marjorie and another girl were seated in the seat with him. Alma Hendon and Joe Buckland occupied the rumble seat, Alma sitting on the left side. Johnson drove the car from Mason City to Plymouth at about 30 miles per hour. At Plymouth Rose Buckland took the wheel and drove to Riceville at about the same speed. They stopped at this town for a short time, and then pursued their journey. Marjorie Wren took the wheel, Kenneth Johnson sat in the middle, and Rose Buckland to his right. The road on which they were traveling was a graveled highway. About 7 miles east of Riceville the car left the highway, went down over the embankment, crashed through a barbed wire fence, and Alma was severely injured. The road at the point where the accident occurred was rough and “washboardy.” The ruts were not deep, but shallow. The rough spot in the road was perceivable by one approaching from 150 to 200 feet. At the time of the accident the car was traveling some 30 to 35 miles per hour. The car started to shake and shimmy, and Johnson grabbed Marjorie's hands from the wheel and told her to step on the brake, which she did, and the car swerved to the left and went down over the embankment, and the injuries occurred.

Marjorie Wren testifies that she rode with Johnson in this car something over a week before and the car then shimmied and turned to the left on the application of the brakes, and Johnson told her that it was the brakes that made it do that, that said brakes were out of adjustment and the front wheels had a tendency to lock or grab, and that caused the car to turn to the left. This was also told by Johnson to A. W. Wren, the father of Marjorie. While this condition of the car was known to Johnson, it was not known to Alma Hendon. From where she sat in the rumble seat of the automobile, she was unable to see even the driver of the car or the road ahead. The shimmying of the car at the time of the accident was the first time it had thus performed on that day; otherwise it had run normally.

[1] One of the defenses set up in this action was the assumption of risk. This defense merits no attention. The doctrine of assumption of risk would of necessity be bottomed on the knowledge on the part of Alma of the defective condition of the car, and the record is not only barren of proof of such knowledge, but it negatives the same. See Gorman v. Brick Mfg. Co., 99 Iowa, 257, 68 N. W. 674;White v. McVicker (Iowa) 246 N. W. 385;Johnson v. McVicker (Iowa) 247 N. W. 488; 5 C. J. 1413.

[2] This case was tried on the theory (and the jury was so instructed) that the appellee was entitled to recover on the theory of negligence and also on the theory of recklessness, and the first question raised in this case is the correctness of this theory of the law. The appellant insists that, if the appellee is entitled to recover at all, she must recover on the ground of recklessness under the guest statute. The appellee seems to be rather inconsistent in her theory of the case. As we gather her theory, it corresponds to the instruction that she could recover either on the ground of recklessness or the ground of negligence. The claim of the appellee, briefly stated, is that the guest statute has no application to the facts in this case because this car was driven by its owner at the time the accident occurred. This theory is applied by the appellee on the following situation, growing out of the law and the amendments thereto in the Code:

Section 5026 of the Code of 1924 reads as follows: “In all cases where damage is done by any car driven by any person under fifteen years of age and in all cases where damage is done by the car, driven by consent of the owner, by reason of negligence of the driver, the owner of the car shall be liable for such damage.”

This section was amended by chapter 119 of the Acts of the Forty-Second General Assembly, reading as follows:

“That the law as it appears in section five thousand twenty-six (5026) of the code, 1924, be and the same is hereby amended by adding at the end thereof the following:

Provided, however, 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.”

When the Code of 1931 was compiled, this amendment was put in what is now section 5026-b1. By comparison, however, with the aforesaid act (chapter 119), it will be noticed that the words “provided, however,” have been omitted, and this amendment is set out as an independent section of the Code. The appellee argues that, taking the original text of the amendment of the Forty-Second General Assembly, by reason of the proviso therein, the section as amended has no application to a case where the owner is driving his own car. In other words, appellee argues that section 5026 applies only to two conditions: (1) Where the car is driven by a person under fifteen years of age, and (2) where it is driven by some other person with the owner's consent; and it is contended that the proviso put on by the amendment must be limited to the above-stated two conditions, and that, as neither of those covers a car driven by the owner, therefore the guest statute covered by the proviso is not applicable.

The origin of this line of statutes was section 12 of chapter 275, Acts of the Thirty-Eighth General Assembly, which is as follows: “No person under fifteen (15) years of age shall operate or drive a motor vehicle by permission from the...