Tucker v. Heaverlo

• Decision Date: 12 November 1957
• Docket Number: No. 49259,49259
• Citation: 249 Iowa 197,86 N.W.2d 353
• Parties: Dewey TUCKER, Appellant, v. David HEAVERLO, Appellee.
• Court: Iowa Supreme Court

Page 353

86 N.W.2d 353

249 Iowa 197

Dewey TUCKER, Appellant, v. David HEAVERLO, Appellee.

No. 49259.

Supreme Court of Iowa.

Nov. 12, 1957.

McMullin, Running, Test & Gardner, Des Moines, for appellant.

H. E. DeReus, Knoxville, and H. S. Life, Oskaloosa, for appellee.

WENNERSTRUM, Justice.

Plaintiff brought an action at law to recover damages for pain and suffering, hospital, medical and surgical expenses and loss of earnings claimed to have been sustained by him as the result of an automobile accident. The principal issue presented in the trial court pertained to whether the defendant had operated his automobile in a reckless manner. At least the record and the motion for a directed verdict so indicated. Upon the completion of the plaintiff's testimony the trial court directed a verdict for the defendant on the ground there was not a sufficient showing of recklessness to allow recovery under the guest statute. Sec. 321.494, 1954 Code, I.C.A. A motion for new trial was filed by the plaintiff which was overruled. The plaintiff has appealed. His counsel in this court did not represent him in the trial court.

Approximately seven weeks after the overruling of the motion for a new trial and after the appeal had been taken the plaintiff filed a second amendment to his petition by adding to one of the original divisions of the petition the words, 'as a passenger for hire'. The plaintiff had not so pleaded previously during the trial. Subsequently a motion to strike this second amendment was filed and later sustained.

During the evening of October 23, 1954 plaintiff was in a tavern in Monroe, Iowa. He made inquiry of the proprietress relative to obtaining a taxi which could take him to Oskaloosa. The defendant apparently overheard the plaintiff's statement and volunteered to take him. It is the plaintiff's testimony he then stated: 'That will be very nice. I will pay you for it.' And the plaintiff further testified the defendant replied: 'I have got a friend with me and he wants to get out and see his father. We will go out in the country and then we will go to Oskaloosa.'

The defendant, David Heaverlo, his companion named Marshall, and the plaintiff left Monroe and drove east from the town. Heaverlo and Marshall were in the front seat with Heaverlo driving, and Tucker, the plaintiff, was in the back seat. After leaving Monroe the parties stopped at the home of Marshall's father for twenty or thirty minutes and then proceeded on their trip. Some time between 9:30 and 10:00 p. m. while the defendant was driving south on a graveled road the accident which resulted in the injuries to the plaintiff occurred. The plaintiff testified that while they were driving on this road he observed the speedometer of the automobile registered a driving speed of between 65 and 70 miles per hour. He also testified he said to the defendant, '* * * you better slow down * * *', to which the defendant replied, '* * * no, we'll make it. * * *' The plaintiff further testified he then stated: '* * * If you won't slow down, you can stop this car at this farm house and let me out. I will find somebody else to get me back to Oskaloosa.' Plaintiff further stated the defendant did not stop and while they continued driving south, and apparently at the rate of speed mentioned by him, the car weaved and swayed.

The accident occurred at a T intersection and concerning the immediate incidents the plaintiff testified: 'Well, we just went on this entering road; went across and dove into an embankment on the other side of the road. We was in the ditch and wrecked. I got my leg broke in two places. * * *' On cross-examination the plaintiff was asked whether he had had more than one conversation with the defendant relative to the speed of the car, and he stated: '* * * I told him to slow down; then I cautioned him again about it.'

There is no evidence of any warning signs as they approached the intersection and there is no testimony the defendant had any knowledge of the road. The plaintiff testified he had never been over it.

The plaintiff in his brief and argument calls our attention to claimed evidences of recklessness as disclosed by the record. They include: driving an old car at a claimed speed of between 65 and 70 miles per hour; the car weaved and swayed at the speed traveled; it was nighttime and dark; the defendant disregarded plaintiff's comments regarding the speed of the car and his requests to be let out of it; the defendant was traveling on a graveled roadway and was overdriving his headlights in that he was able to apply the brakes of his automobile for only 25 feet before striking the embankment; the defendant was not keeping a proper lookout in that he was not able to apply the brakes of the automobile in sufficient time and for sufficient space to avoid the impact, and, the defendant made an oral admission of his recklessness by pleading guilty to a charge of reckless driving.

In keeping with our long established rule all these claimed evidences of recklessness should be considered in a light most favorable to the plaintiff in determining whether a directed verdict in the instant case should be approved. It is equally true we should endeavor to apply the foregoing claimed evidences of recklessness to our previous decisions in order that there may be, as far as possible, uniformity in our holdings. However, as we have heretofore held, each case must be decided on the facts disclosed.

It is particularly urged the plaintiff was a guest passenger. A recovery under such circumstances is limited by the provisions of that statute. It is as follows: '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.' Sec. 321.494, 1954 Code of Iowa, I.C.A.

Consequently we must determine whether under the circumstances previously set forth recklessness was so shown as to justify and necessitate the determination of that question and the claimed resulting damage by a jury. There is no evidence of intoxication.

This court has considered many cases relative to the claim of recklessness. In the case of Russell v. Turner, D.C., 56 F.Supp. 455, there are reviewed and commented upon our cases on this subject matter decided up to 1944. In Schmitt v. Cutkomp, Iowa, 81 N.W.2d 662, our later cases are noted.

I. As heretofore noted the plaintiff called defendant's attention to the speed of the car and requested he be let out of it. We are also reminded of the defendant's reply: 'We'll make it.' Does high speed coupled with a remark such as is attributed to defendant indicate a reckless attitude and 'a disregard for consequences'?

Actions rather than words have been determinative of our decisions regarding recklessness. Schmitt v. Cutkomp, Iowa 81 N.W.2d 662, 664. The disregarding of an admonition does not in itself evidence a reckless state of mind. Russell v. Turner, D.C., 56 F.Supp. 455, 461. A like holding is found in Mayer v. Sheetz, 223 Iowa 582, 587, 273 N.W. 138, where under the circumstances disclosed we held exclamation relative to speed was not sufficient to justify the submission of the question of recklessness to the jury. In Mescher v. Brogan, 223 Iowa, 573, 581, 272 N.W. 645, 650, in commenting on remarks made by occupants of an automobile we stated: '* * * In other words, the consequences were neither added to, nor detracted from, by this statement or by his mental attitude. It is the actions and conduct, and not the mental attitude of the actor, that measure the degree of care and determines whether or not one is proceeding without heed of, or concern for, conseqnences, and with a heedless disregard for, or indifference to, the rights of others. * * *'

It is when remarks, along with actions of the driver, disclose evidence of a frame of mind showing no care, and complete disregard for consequence that we can say such remarks have a bearing on the question of recklessness. Schmitt v. Cutkomp, supra, at page 664, 665 of 81 N.W.2d. Hahn v. Strubel, 243 Iowa 438, 52 N.W.2d 28.

On this phase of the evidence we are unable to conclude there was, along with the statements attributed to defendant, actions on his part which manifested a heedless disregard for and indifference to the claimed dangerous conditions.

II. There is no evidence disclosed by the record which indicates the defendant driver had ever been over the road on which he was driving, and had any knowledge of his approach to a T intersection. Likewise there is no evidence of roadside warning signs of any change in its course.

In Russell v. Turner, supra, 56 F.Supp. at page 465, where the court was dealing with a similar type of intersection it is stated: '* * * Dealing with the situation from the viewpoint of possibilities and probabilities, it would appear to be the Iowa rule that the sudden ending of a road without warning to one unfamiliar with the road is a possibility and not a probability on the question of whether the driver is acting in conscious disregard of danger.'

The cases of Wilde v. Griffel, 214 Iowa 1177, 243 N.W. 159, and Tomasek v. Lynch, 233 Iowa 662, 10 N.W.2d 3, are cited as authority for the holding that where the driver does not have conscious knowledge that a road ends at a T intersection one is not guilty of recklessness in not observing the character of the intersection in time. In each of the last two cited cases this court held there was not sufficient evidence of recklessness to justify the submission of fact questions relative to recklessness to a jury. See also Peter v. Thomas, 231 Iowa 985, 2 N.W.2d 643; Nesci v. Willey, 247 Iowa 621, 628, 75 N.W.2d 257.

It is apparent the defendant applied the brakes of his...