Twogood v. American Farmers Mut. Auto. Ins. Ass'n
| Decision Date | 11 February 1941 |
| Docket Number | 45428. |
| Citation | 296 N.W. 239,229 Iowa 1133 |
| Parties | TWOGOOD v. AMERICAN FARMERS MUT. AUTOMOBILE INS. ASS'N. |
| Court | Iowa Supreme Court |
Appeal from District Court, Plymouth County; R. G. Rodman, Judge.
Action at law by the assured to recover for damage to his automobile received in a collision and upset, under the terms of a policy of insurance, issued to him by the defendant. The defendant has appealed from a judgment for plaintiff on a directed verdict, and from the overruling of its motion to direct a verdict, and from all other adverse rulings.
Reversed.
Putnam, Putnam, Fillmore & Putnam, of Des Moines, for appellant.
Roseberry & Pitts, of Le Mars, for appellee.
In his petition, the plaintiff alleged the issuance of the policy upon his damaged car and that it was in full force and effect at the time of the injury. He alleged recoverable damages for injury to the car in the sum of $466.12. In Count I of its answer, defendant denied generally except as admitted or otherwise plead to. In Count II of the answer, defendant alleged:
" By way of affirmative defense the defendant states:
That by the terms of the policy of insurance issued to the plaintiff under the conditions thereof, it is provided:
It was stipulated that the policy was issued to the plaintiff and that it was in full force and effect at the time of the accident on October 25, 1939, and that the required notice and proof of loss had been given. It was also conceded that the stipulation waived none of defendant's rights under the exclusion clause of the policy.
The facts, as taken from the abstracts, are as follows: The plaintiff, a man sixty-seven years old, a licensed driver, a member of the Board of Supervisors of Plymouth County, Iowa, had roomed at the home of Mrs. Schneider in Hinton for ten years; on the day of the accident, he had come to the home about 4 o'clock in the afternoon, and was told that the cattle at the county home were in the corn; he asked Patricia Schneider, the sixteen year old daughter of the home, to go with him, she got behind the steering wheel of the Dodge sedan, and plaintiff sat on the front seat to her right; she had driven the car repeatedly with plaintiff's permission; and he testified that she had been a good driver; she had been driving for about two years; Patricia drove a mile west and a mile south of Hinton, over a hilly road, which was strange to her, at a speed of between 20 and 30 miles an hour; at that point, the north and south road intersected an east and west road; their route required a turn to the right and west on this intersecting road; this turn was apparently a sharp one, and was described by the plaintiff as a hairpin turn; it was on a short, rather steep rising grade which terminated at the east end of a wooden bridge, 48 feet long, about 16 feet wide, with wooden banisters along the sides; as the car approached the intersection, plaintiff said to Patricia, ; she slowed the car to less than 10 miles an hour, and before the car reached the turn, she asked the plaintiff if he didn't want to take the wheel; she had asked him that once before, and he hold her, " All right; just go ahead and take it slow; " the car was in high gear, and as the speed was reduced, the motor stopped and the car stalled just as it came on to the east end of the bridge, at about its center, with the front wheels of the car cramped to the right; Patricia set the hand emergency brake, the lever of which was to her left, and said to plaintiff, " You had better take it" ; he replied, ; plaintiff took hold of the wheel, and pushed her over a little ways so he could get a better hold of the wheel, but didn't exchange places with her; plaintiff said to her, ; she let go of the wheel and did not afterward take a hold of it; the gear shift was on the steering wheel; the ignition was at all times on; the clutch pedal and brake pedal, both operated by the foot, were side by side just under the wheel; the foot starter was to the right and forward of the other foot pedals; when plaintiff told her to " go ahead," she disengaged the clutch, shifted into low gear, stepped on the starter, released the emergency brake, engaged the clutch, stepped on the accelerator, and the car " lurched forward," " grabbed" the north railing, and went through it to the ditch below. When the car was started, the front wheels were still cramped to the right and north. Plaintiff never turned the steering wheel. He did nothing after putting his hand on the wheel. He testified:
Plaintiff and Patricia were the only witnesses testifying as to how the accident occurred. Each testified for the plaintiff. They were bruised and shaken up considerably when the car fell from the bridge, and were taken to a Sioux City hospital. Two days later, and while plaintiff was in the hospital, a representative of the defendant interviewed him. He told the representative what had taken place, and the latter wrote it, in substance, on the blank lines following printed questions on a blank proof-of-loss report. This report had been signed by plaintiff, and was identified by him, and introduced in evidence by defendant as a part of his cross-examination. It stated among other matters, not material here: " * * *.
It will be noted that three times in the statement he refers to Patricia as the driver, or as driving the car. At that time he apparently had no thought that she was not driving his car at the very time of the accident. The plaintiff, as a witness, did not dispute the correctness of the statement, nor attempt to change or correct it. When he read it from the witness chair, at the request of his attorney, he stated:
It was stipulated, as a part of the defense, that Patricia had no driver's, operator's or chauffeur's license, or permit or instruction permit to drive a car, and that no application for one had been made by her, or by any one in her behalf. She was unquestionably " a person prohibited from driving, or unauthorized by law to drive an automobile."
If the statement signed by plaintiff be taken at its face value, it must be said, in our judgment, that the car was being " operated or manipulated" by Patricia Schneider, " a person prohibited from driving, or unauthorized by law to drive an automobile." The testimony of the two witnesses, though in greater detail, confirms the written statement of plaintiff that Patricia was driving the car. He appreciated that she was not quite sure of her driving ability in the situation confronting her. She had asked him twice before if he ought not do the driving. He tried to assure her that everything was all right, and that she was unnecessarily scared. He did not attempt to take over the operation of the car. He was merely assisting her. When the motor stopped and the car stalled, and she again said, " You had better take it," meaning clearly to drive the car, he did not do so, but taking hold of the wheel, he told her to " start it up" and " go ahead." He was simply going to help her over the temporary difficulty, and then they would be on their way, with Patricia continuing to drive the car, as she had been doing since they left her home.
Each party cites various definitions of the word " operate." It is a word with a definite general meaning but is used to express many differing shades thereof. With reference to the use of a motor vehicle on the highway, paragraph 39 of the 1939 Code, Section 5000.01 defines an operator thereof as meaning " Every person, other than a chauffeur, who is in actual physical control of a motor vehicle upon a highway." This does not mean that one who has general authority over a driver with respect to the destination, route, or rate of speed...
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