Tuttle v. Longnecker

• Decision Date: 14 December 1965
• Docket Number: No. 51932,51932
• Citation: 138 N.W.2d 851,258 Iowa 393
• Parties: Theresa TUTTLE, as Guardian of Jennie Tuttle, a Minor, and Theresa Tuttle, Appellees, v. James LONGNECKER and Charles Fleege, Appellants.
• Court: Iowa Supreme Court

Page 851

138 N.W.2d 851

258 Iowa 393

Theresa TUTTLE, as Guardian of Jennie Tuttle, a Minor, and Theresa Tuttle, Appellees, v. James LONGNECKER and Charles Fleege, Appellants.

No. 51932.

Supreme Court of Iowa.

Dec. 14, 1965.

James R. Hamilton, Storm Lake, for appellant James Longnecker.

Lund & Lund, Webster City, for appellant Charles Fleege.

Shaw & Shaw, Pocahontas, and Sackett & Sackett, Spencer, for appellees.

GARFIELD, Chief Justice.

The principal question presented is whether the evidence is sufficient to support the jury's finding that the damages claimed were caused by the reckless operation of a motor vehicle, within the meaning of section 321.494, Code, 1962, commonly called 'the guest statute.' We hold the evidence is sufficient.

The action is at law by the mother as guardian of Jennie Tuttle, 15 when she suffered injury, to recover therefor and, in another count, as only living parent, to recover for hospital and medical expense and loss of earnings during minority, caused by the alleged reckless operation by defendant Longnecker, within the meaning of section 321.494, of a motor vehicle. Charles Fleege, owner of the vehicle, was joined as defendant on the theory the vehicle was driven with his consent and hence he was liable for the damage under section 321.493, 'the consent statute.' Trial resulted in verdict for plaintiff on each count and defendants appeal from judgment thereon.

In addition to the principal question here presented as above referred to, defendants also assert: 1) the evidence is insufficient to support the jury finding that the vehicle was driven with the owner's consent, and 2) that as a matter of law Jennie Tuttle (whom we call plaintiff) assumed the risk from the manner in which the car was operated.

The jury's findings are binding upon us if supported by substantial evidence. Upon this appeal we give plaintiff's evidence the most favorable construction it will reasonably bear. Authorities need not be cited for these propositions. Rule 344(f) 1, 2, Rules of Civil Procedure. We need consider only the evidence favorable to plaintiff, whether or not it was contradicted. Martin v. Cafer, Iowa, 138 N.W.2d 71, 73, and citation.

I. We consider first the sufficiency of the evidence of reckless operation of the vehicle.

It is unnecessary to repeat the familiar definition of reckless operation as used in section 321.494 or to restate the three elements thereof heretofore recognized by us. Martin v. Cafer, filed at our last sitting, fully states the applicable law and concludes (page 74), 'We have required evidence of a persistent course of conduct to show no care coupled with disregard of consequences. * * *' See also article by William G. Wheatcraft, 8 Drake Law Review 128.

Plaintiff and seven other teenagers (two boys and six girls) attended a high school basketball game in the town of Pocahontas on the evening in question. After the game they piled into the Fleege Ford car to go to an eatin place a few blocks away. Marcia Fleege inserted the ignition key into the dash or handed it to Longnecker, whom we call defendant, and he drove the car. Plaintiff was at the right side of the front seat, Marcia was in the middle. The other five occupied the rear seat. The eating place was filled with customers so they went north two miles on paved primary Highway 17, then turned west on an intersecting gravel road.

Sharon Hood, who sat on the right side of the rear seat, testified that when they had gone west about one-fourth mile defendant 'started swerving the car back and forth, turned the steering wheel from one side to the other. * * * I saw that he (defendant) had a pleasant smile on his face during this time.' He turned the steering wheel one way and then the other so as to make the car zigzag. 'It scared me. We were kind of going from one side to the other in the seat as it swerved. * * * I told him to stop swerving the car.' He didn't stop, he continued, 'I could still see his face. I observed the same expression as before, until he lost control of the car. * * * Then he looked frightened. After he lost control it kept going back and forth I don't know how many times, then on the opposite side of the road it hit loose gravel and went directly across the road into the ditch--flew in the ditch.'

A farmer living a half mile west of the scene went there soon after the wreck occurred. He said he observed skid marks on the sought side of the road and again on the north side. 'Q. Then where did those skid marks go? A. From the north side the skid marks made a right angle turn right into the ditch.'

The state patrolman who investigated the occurrence testified there was considerable loose material on the road surface, he saw tracks made by the Fleege car from the westbound lane a few feet towards the north ditch, then veering sharply southwest for 75 feet into the ditch on the south side, traffic had obliterated any tracks that might have been further east.

One of the girl occupants of the car said she remembered the car swerving and nothing more about the accident. Another girl testified it seemed like they hit a bump 'or something' but she remembered nothing else. All the girls other than Sharon Hood suffered loss of memory regarding the accident from injuries sustained. All the girls except Marcia Fleege (daughter of the car owner) testified for plaintiff. The boy passenger did not testify.

The jury could properly find from the testimony of the farmer and patrolman the place where the car swerved into the south road ditch was about three-fourths mile west of Highway 17 and thus one-half mile beyond the place defendant started to turn the steering wheel from one side to the other, causing the car to zigzag, heedless of Sharon Hood's protest.

Defendant's version of the accident is that after the car went over a bridge it struck loose gravel and swayed and swerved violently for about 150 feet, then went into the ditch. He denied he intentionally caused the car to swerve and that Sharon Hood made any protest. He fixed his speed at about 40 miles per hour.

The Hood girl had a pending lawsuit to recover for injuries she sustained in the accident and much of her testimony was denied. However, the jury evidently believed she was telling the truth and declined to accept defendant's version of the occurrence. Of course the jury was the sole judge of the credibility of these and other witnesses and the weight to be accorded their testimony. See Instruction 1.5 of Iowa Uniform Jury Instructions prepared by a committee of the state bar association.

It is not for us to determine whether defendant was reckless. Our review is not de novo but for correction of errors at law. R.C.P. 334. Our function is to decide whether the evidence is such that an inference of recklessness may be fairly drawn therefrom. Martin v. Cafer, supra, Iowa, 138 N.W.2d 71, filed November 16, 1965. See also Whiting v. Stephas, 247 Iowa 473, 477, 74 N.W.2d 228, 230.

We are not prepared to hold an inference of recklessness is not permissible here. As before indicated, the jury had a right to believe, and evidently did, that defendant deliberately caused the car to swerve back and forth across the gravel road for about one-half mile heedless of the protest of one of the passengers in an attempt to scare them. Also that no care was used at a time when defendant knew or was chargeable with knowledge of the danger from such conduct. The jury could further find, what experience teaches, that injury from driving in this manner was probable, not merely possible. Driving a car involves enough danger without deliberately seeking to make it more so.

The evidence of recklessness here is much stronger than that held sufficient in Hebert v. Allen, 241 Iowa 684, 41 N.W.2d 240. There the car was driven a half block at 15 to 20 miles per hour when in a matter of seconds it swerved off the pavement to the right and sideswiped a pole 3 1/2 feet therefrom injuring plaintiff who was standing on the car running board. There was no protest to the driver at his manner of driving but another passenger remarked to plaintiff, 'He is probably trying to scare us.' The car stopped within ten feet after hitting the pole. We thought there was a permissible ineference defendant was deliberately trying to frighten the passengers and that a...