Stuart v. Pilgrim

• Decision Date: 10 January 1956
• Docket Number: No. 48815,48815
• Citation: 74 N.W.2d 212,247 Iowa 709
• Parties: Emma Belle STUART, Appellant, v. Margaret PILGRIM, Appellee.
• Court: Iowa Supreme Court

Page 212

74 N.W.2d 212

247 Iowa 709

Emma Belle STUART, Appellant, v. Margaret PILGRIM, Appellee.

No. 48815.

Supreme Court of Iowa.

Jan. 10, 1956.

Rehearing Denied March 9, 1956.

Filseth & Schroeder, Davenport, and Leo J. Tapscott, Des Moines, for appellant.

McDonald & McCracken, Davenport, for appellee.

THOMPSON, Justice.

On August 16, 1952, a collision occurred on a public highway in Scott County between automobiles owned by the plaintiff and defendant, respectively. Plaintiff's car was driven by her husband, with her consent. She was riding in the automobile as a passenger. Defendant was driving her own car. Both automobiles were traveling in the same direction. As plaintiff's car approached a private driveway leading from the left side of the highway to the plant of the Bendix Aircraft Corporation, the driver prepared to make a left turn for the purpose of entering this drive. The defendant, coming from the rear, had just passed two other cars and was about to pass plaintiff's when she observed that plaintiff's automobile was about to turn. She endeavored to swing to the right, but a collision occurred with resultant damage to both cars and personal injuries to the plaintiff. Whether plaintiff's car had swung to the left so as to be upon or partly upon its left side of the highway was in dispute in the evidence, and for the purpose of our discussion here is not important.

I. Both parties in argument concede that the important question in the case concerns the trial court's instructions upon the question of imputed contributory negligence of plaintiff's husband, the driver of her car, to the plaintiff herself. The plaintiff assigns error upon the court's instructions upon this point, and in view of the argument of the parties and the fact that we find no merit in plaintiff's other assignments we think it the only one necessary to discuss.

The trial court, in its Instruction No. 6, after pointing out that it was conceded that the car was driven by John T. Stuart, plaintiff's husband, with her consent, told the jury: 'Consequently, if you find that John T. Stuart was negligent in any of the respects charged by the defendant as set forth in the statement of the issues herein, such negligence would be imputed to and would likewise be the negligence of the plaintiff, Emma Belle Stuart.'

In Instruction No. 7, which enumerated the matters which the plaintiff must establish by a preponderance of the evidence in order to recover, the court said: '3. That the plaintiff was free from any negligence which in any manner or degree contributed directly to plaintiff's injuries and damage; and in this regard you will keep in mind that the contributory negligence, if any, of John T. Stuart would be imputed to and would therefore be the contributory negligence of Emma Belle Stuart.' (Italics supplied.)

While it is plaintiff's apparent thought that Instruction No. 6 referred to contributory negligence, it may well be that the court was therein referring to the direct actionable negligence of the driver of plaintiff's car pleaded in defendant's counterclaim. In this view of the instruction, it was correct. Section 321.493 of the 1954 Code of Iowa, I.C.A., which has been incorporated in our statutory law in substantially its present form since 1919 (see Chapter 275, section 12, Acts of the Thirty-eighth General Assembly) is herewith set out:

'In all cases where damage is done by any car by reason of negligence of the driver, and driven with the consent of the owner, the owner of the car shall be liable for such damage.'

It is evident, therefore, that as to the damages claimed by defendant in her counterclaim, this instruction laid down the correct rule of law. But by Instruction No. 7 the court in unequivocal terms made the contributory negligence of the driver of plaintiff's automobile the contributory negligence of the plaintiff herself. It told the jury plainly that the contributory negligence of the driver was imputed to the plaintiff as a matter of law; and since the jury was likewise told in other instructions that plaintiff must show her freedom from such negligence, it barred her recovery if the driver of her car was guilty of any negligence contributing to her injuries and damage. The correctness of this instruction is the controlling question in the case.

II. It must be conceded that in giving the challenged part of Instruction No. 7 the able trial court was but following the law as determined by this court in prior decisions. In Secured Finance Co. v. Chicago, R. I. & P. R. Co., 207 Iowa 1105, 224 N.W. 88, 61 A.L.R. 855, we discussed and analyzed the question, and held unmistakably that under section 321.493, supra (then section 5026, Code of 1927) the contributory negligence of the driver of an automobile operated with the owner's consent was imputed to the owner as a matter of law in the owner's action for damages against a third party. It is true in that case the owner's action involved only damage to his car; but the reasoning applies as well to an action by the owner for personal injuries. The case cannot be fairly distinguished from the one at bar; it must be followed or overruled. Nor can we say, as did a New York court, that the owner is guilty of imputed negligence for the reason that she was riding in the car with the consent driver when the accident occurred. Gochee v. Wagner, 232 App.Div. 401, 403, 250 N.Y.S. 102, 105. The general rule is to the contrary.

'The mere presence of the owner in an automobile while it is being driven in a negligent manner by another does not necessarily make him liable for an injury caused thereby if he would not otherwise have been liable.' 5 Am.Jur., Automobiles, section 354.

'The owner's presence in his car at the time an injury occurs while it is being operated by another will not of itself preclude his right to recover for injury or damage.' 5 Am.Jur., Automobiles, section 496.

See also Virginia Ry. & Power Co. v. Gorsuch, 120 Va. 655, 91 S.E. 632, Ann.Cas.1918B, 838, and Christensen v. Hennepin Transportation Co., 215 Minn. 394, 10 N.W.2d 406, 412, 413, 147 A.L.R. 945. In fact, it is not argued by the defendant-appellee here that the owner's presence in the car constituted a legal reason for imputing the driver's negligence to her, in the absence of any facts showing she exercised any control over the manner of driving, or that there was a showing of any factual relation between her and her driver husband of principal and agent, master and servant, employer and employee, partnership or joint venture. The record is devoid of any showing of the existence of such facts. Instruction No. 7 must be supported if it is to be supported at all solely upon the theory, adopted in the Secured Finance case, supra, that because our statute makes the owner liable for damages caused by the negligent operation of the car by one whom he has permitted to operate it, the negligence of such driver must likewise be imputed to the owner in the latter's action against an alleged negligent third who injures the owner or his automobile.

This brings us to the difficult point in the case. We now believe the rule adopted in the Secured Finance Company case to be demonstrably unsound. But it was followed since its promulgation by this court in 1929. It has been followed, without analysis or comment, in at least two cases. In Rogers v. Jefferson, 224 Iowa 324, 326, 275 N.W. 874, 876, we said:

'However, it is pointed out by appellant * * * that Mr. Rogers owned the car, and the son was driving it with his consent, and hence the negligence of the son was imputed to the father, and in this the appellant is correct.'

In re Estate of Green, 224 Iowa 1268, 1273, 278 N.W. 285, 288, also followed the rule without discussion in this language:

'Any contributory negligence on the part of Waldo Denny (the driver) is imputable to the plaintiff (the owner).'

The problem before us now is whether more harm will be done by overruling our previous cases in order to install what we think is clearly the correct principle, or by adhering to an unsound decision in the interest of the rule of stare decisis. It is of the greatest importance that the law should be settled. Fairness to the trial courts, to the legal profession, and above all to citizens generally demands that interpretations once made should be overturned only for the most cogent reasons. The law should be progressive; it should advance with changing conditions. But this does not mean that its forward progress should be over the dead bodies of slain and discarded precedents. Legal authority must be respected; not because it is venerable with age, but because it is important that courts, and lawyers and their clients, may know what the law is and order their affairs accordingly.

We have concluded here, however, that more mischief will be done by adhering to the precedent established in the Secured Finance Company case than by overruling it. It proceeds upon a wrong principle, built upon a false premise, and arrives at an erroneous conclusion. It is of course incumbent upon us to make clear our reasons for so determining.

This court in reaching its decision in the Secured Finance case seems to have based it upon two lines of reasoning and authority: First, that our 'owner's responsibility' statute (section 321.493, supra) created the relation of principal and agent between the owner and the driver, for all purposes relating to the operation of the car; and second, the 'two-way' doctrine, that since the statute makes the owner liable for the actionable negligence of the consent driver, it must follow that the latter's contributory negligence is to be imputed to him. The first reason misconceives the intent and language of the statute; the second is an obvious non sequitur. The opinion also cites and apparently gives weight to a New York case, Psota v. Long Island R. Co., 246 N.Y. 388, 159 N.E. 180, 62 A.L.R. 1163. But whatever the...