Stenberg v. Buckley, 48414

• Decision Date: 15 December 1953
• Docket Number: No. 48414,48414
• Citation: 61 N.W.2d 452,245 Iowa 622
• Parties: STENBERG v. BUCKLEY.
• Court: Iowa Supreme Court

Page 452

61 N.W.2d 452

245 Iowa 622

STENBERG v. BUCKLEY.

No. 48414.

Supreme Court of Iowa.

Dec. 15, 1953.

Rudolph & Rudolph, Atlantic, and White & Bruner, Carroll, for appellant.

Jones, Cambridge & Carl, Atlantic, for appellee.

THOMPSON, Justice.

Plaintiff's petition was in two counts. The first alleged the death of her decedent, Theodore Stenberg, resulting from injuries sustained while riding as a guest in an automobile owned and driven by defendant's decedent, Jack Buckley, and alleged acts of recklessness and intoxication on the part of Buckley. The second count set up facts claimed to show Theodore Stenberg was not a guest under the meaning of the Iowa 'automobile guest statute,' and alleged the death of Theodore Stenberg resulted from certain specified negligences of Jack Buckley. At the close of plaintiff's evidence the trial court sustained defendant's motion for peremptory verdict and entered judgment for defendant. We shall hereafter, for the sake of brevity, refer to Theodore Stenberg as the plaintiff and Jack Buckley as the defendant.

On March 15, 1951, both plaintiff and defendant were members of the Atlantic lodge of the Loyal Order of Moose. Plaintiff was employed by Sears-Roebuck & Company. Dedendant owned and operated a restaurant, known as the Iowa Cafe, in Atlantic. Defendant was chairman of the food committee of the lodge and plaintiff was a member of the same committee. The lodge hall was about one mile west of Atlantic on U. S. highway No. 6. A 'stag' party for the lodge members was planned for the evening of March 15th and defendant was to furnish the food and serve it. During the day his wife, as cook at the restaurant, prepared two turkeys 'and the dressings and the trimmings' to be served. The quotation is from defendant's deposition. The turkeys weighed 44 pounds. Defendant says that during the day he made arrangements for plaintiff to go out with him 'on this committee work.' Mrs. Stenberg was 'second cook' in defendant's cafe. Plaintiff, called by defendant, helped load the food, together with knives and other utensils needed in serving the meal, into defendant's 1950 Chevrolet automobile, and the two men rode to the clubhouse, with defendant driving. This was about 6:15 in the evening. Arriving there they unloaded the car and took the food and utensils into the kitchen.

Defendant said there were between 50 and 60 members of the lodge present that evening, 'maybe more.' Defendant carved the turkeys and plaintiff and some other members helped dish out the meat and accessories. They finished serving the meal and cleaning up afterwards shortly after 9:30. Soon after 11:00 defendant prepared sandwiches and made coffee for the group. Plaintiff did not help with this. At 12:25 a. m. defendant summoned plaintiff to go home. They loaded the defendant's car with 'some of the stuff,' presumably the utensils and left-overs, and started home. Defendant says he drove at 25 miles per hour all the way. The highway and the city streets were icy and as they reached the driveway of a filling station located on the southwest corner of the intersection of West Seventh and Laurel streets, in Atlantic, the defendant lost control of the car. It veered to the right, the two right wheels apparently climbing a snowbank at the curb in front of the filling station, then shot across the intersection, again climbed a snowbak at the curb across the street with the two right wheels, and after progressing 199 feet crashed into a tree in the parking. Stenberg was killed almost instantly; defendant suffered serious injuries. He died on May 14, 1952; whether from the hurts sustained in the accident is not stated, and in any event it is immaterial to the issues before us. His administratrix has been substituted as defendant.

I. The plaintiff-appellant assigns three errors; but the third one deals with the question of intoxication, and since counsel in oral argument conceded he had little confidence in this assignment and a review of the record shows it has no merit, we shall not consider it further. The first assignment is that the court was in error in holding plaintiff was a guest while riding in defendant's car, within the meaning of the 'automobile guest statute.' The second is that the court was in error in holding plaintiff, if he was a guest, had failed to show recklessness sufficient to generate a jury question.

We address ourselves first to the question raised by the first assignment of error and by Count II of the petition. This count contained the following allegation:

'* * * plaintiff's decedent * * * and the defendant * * * were both members of the Atlantic, Iowa, Moose Lodge, and as such members and for the benefit of said lodge, were upon said date engaged in the common enterprise of preparing and serving food to be consumed by the members of said lodge during the evening and night of said day, and that their duties in that capacity consisted of preparing and transferring said food from the defendant's cafe in Atlantic, Iowa, to the Moose Lodge at the west edge of Atlantic, Iowa, serving said food and returning the equipment used in connection with its preparation and service to the defendant's cafe * * *. That the said Jack Buckley received compensation for purchasing and preparing said food.' (Italics ours.)

Because of what we conceive to be the legal situation governing the determination of whether a person riding in a motor vehicle with the driver is or is not a guest within the meaning of the statute, we shall first consider that part of Count II which we have italized. It is contended by plaintiff that, while there is no direct evidence of the arrangement between Buckley and the lodge, the situation requires a presumption, or inference of fact, that he was to be paid. This the defendant denies. The trial court ruled with the defendant, at least to the extent of holding it was incumbent upon plaintiff to show recklessness, and plaintiff had failed to meet this burden. This was of course a holding plaintiff, under the evidence adduced, was a guest as a matter of law.

The question of whether Buckley was furnishing the food without promise or expectation of pay, or was in fact to be compensated for it, is of great importance. It is true there is no witness who says directly the lodge or anyone else was to pay him; so if there is no presumption or inference from what the record does show, the fact is not proven. What are commonly known as 'presumptions of fact' are really not presumptions at all, but inferences. '* * * a 'presumption of fact,' in the loose sense, is merely an improper term for the rational potency, or probative value, of the evidentiary fact, * * *'. Wigmore on Evidence, 3rd Ed., Vol. IX, 288, section 2491. Greenleaf on Evidence, 144, § 44, says:

'They are, in truth, but mere arguments, * * *' and '* * * depend upon their own natural force and efficacy in generating belief and conviction in the mind, * * *'.

These inferences do not affect the duty of either party to produce evidence, except as each party is desirous of showing whatever he can to aid his case. Whether an inference of act, a 'presumption of fact in the loose sense' as Dean Wigmore describes it, aids a litigant, depends upon whether the common knowledge and experience of men, as applied to facts shown, lead to the belief that ordinarily and usually further facts or consequences follow. Such an inference is a reasoning process, an inferring from other facts which appear in evidence. The presumption of innocence which clothes a defendant in a criminal case is one raised by the law, and is a real presumption; but when it is said, for instance, that when a certain state of things or affairs is shown to have existed at a given time, its continuance is presumed, what is really meant is that the showing of the existence at a specified time is admissible as evidence of the continued existence. It is of course a rebuttable inference. Whether any inference is to be drawn from a given set of facts depends upon whether the state of affairs to be inferred usually and generally follows from the facts shown.

We now turn to the evidence in the case under consideration. The defendant Buckley was an owner and operator of a restaurant business. He was also chairman of the food committee of the Moose lodge. He had agreed to furnish all the food for a turkey dinner at the lodge rooms on the evening of March 15th. This included not only the food itself, but its preparation and serving. Two turkeys, with many other items of food, were required. It was necessary also to send many utensils from the cafe to the clubhouse. Some fifty to sixty men, perhaps more, were fed. The utensils at least, and perhaps any items of food unconsumed, were to be returned to the restaurant. The defendant summoned the plaintiff, who was also a member of the food committee, to aid him in transporting the food and utensils to the lodge rooms, to prepare and serve it, and to help load the car for the return trip.

From this state of facts, all shown in the record, may an inference of fact be drawn as to the arrangement between the defendant and the Moose lodge in regard to compensation or lack of it? Does the common experience of men as to this situation point so clearly to the probabilities that any inference may be drawn? We think it does.

The defendant was in the business of selling food in his cafe. The cost of a dinner for the number of men who attended the Moose party on the night of March 15, 1951, would be considerable. Not only was a dinner with turkey as the piece de resistance supplied, but sandwiches were served later in the evening. The high cost of food during the past several years is common knowledge. We think the evidence admitted in the case adequate to prove, at least until rebutted, that the defendant was to be compensated for the food which he furnished; it does not accord with reality and experience that he was...