Tomasek v. Lynch

• Citation: 233 Iowa 662,10 N.W.2d 3
• Decision Date: 15 June 1943
• Docket Number: No. 46162.,46162.
• Parties: TOMASEK v. LYNCH.
• Court: Iowa Supreme Court

233 Iowa 662
10 N.W.2d 3

TOMASEK
v.
LYNCH.

No. 46162.

Supreme Court of Iowa.

June 15, 1943.

Appeal from District Court, Fayette County; W. L. Eichendorf, Judge.

Suit for damages wherein plaintiff claimed injuries received while riding as a guest in an automobile driven by the defendant. The cause was submitted to the jury and a verdict was rendered in favor of the plaintiff and defendant appealed.

Reversed.

[10 N.W.2d 4]

Gibson, Stewart & Garrett, of Des Moines, and Estey & Estey, of West Union, for appellant.

Antes & Antes, of West Union, for appellee.

MANTZ, Justice.

This is a law action wherein Lois Tomasek seeks to recover for injuries which she claims to have suffered while she was riding as a guest in an automobile owned and operated by Hugh J. Lynch on July 5, 1941. She claims that the injuries which she suffered were brought about by the conduct of the defendant in then operating his automobile in a reckless manner, and that at the time he was in an intoxicated condition.

The defendant denies generally the claim of the plaintiff, admits that at the time and place in question he was operating his automobile and that the plaintiff was a guest therein, but avers that the injuries which plaintiff received were by reason of an unavoidable accident. He specifically denies that he was reckless in the operation of his automobile, or that while doing so he was intoxicated.

At the conclusion of the plaintiff's testimony and after she had rested, the defendant moved for a directed verdict on the ground that plaintiff had failed to substantiate her claim sufficiently to have the matter submitted to the jury. This motion was overruled. When both sides had rested the defendant renewed said motion to direct a verdict. This was overruled. Exceptions were taken to both adverse rulings. The cause was submitted to the jury and with the instructions there were submitted to the jury two special interrogatories requested by the defendant. The first interrogatory asked the jury to state whether the defendant at the time and place of the accident was operating his automobile in a reckless manner, and the second whether at said time and place the defendant was in an intoxicated condition. The jury in returning a verdict in favor of the plaintiff answered the first interrogatory in the affirmative and the second in the negative. Judgment was entered after which the defendant moved to set the same aside, for judgment notwithstanding the verdict, and to dismiss plaintiff's petition. The motions were overruled and the defendant has appealed to this court.

Appellee brings suit under what is popularly known as the “Guest statute”, which is as follows: “Section 5037.10 Guest statute. 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.”

Appellant concedes that appellee was a guest in his automobile at the time she received the injuries complained of. The jury having determined that at the time and place of the accident, the appellant was not intoxicated, appellee's recovery, if any, must be bottomed upon the other exception set forth in the above quoted statute, that is, that she was injured by reason of the reckless operation of the automobile then driven by appellant.

The reckless operation with which appellee charges the appellant in her petition is as follows:

“That the defendant was reckless in the operation of his car at the time of the accident in that he was driving his automobile at said time and place at an excessive rate of speed to-wit: in excess of 65 miles per hour; in that he failed to reduce the speed of his said automobile so that he could make a left turn and avoid running off the end of the road and into the ditch; in that in failing to have his car under control thereby avoiding having the accident.”

[10 N.W.2d 5]

The burden is upon the appellee to establish such allegation of recklessness and she must do so by the greater weight of the evidence. The court in submitting that issue to the jury must have found that appellee had made a showing sufficient to generate a jury question. In order to pass upon the correctness of that action of the court it is necessary to review the evidence thereon as shown in the record.

...