Usher v. Stafford
| Decision Date | 16 November 1939 |
| Docket Number | 44901. |
| Citation | 288 N.W. 432,227 Iowa 443 |
| Parties | USHER v. STAFFORD et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; Loy Ladd, Judge.
Action at law for damages alleged to have been caused by the negligence of defendant Stafford in the operation of a truck owned and driven with the consent of the defendant Gas Company. Both defendants plead a general denial. In addition the Gas Company affirmatively pleaded that the accident resulted from the carelessness of Weaver, owner of the car in which plaintiff was riding, with respect to speed, lookout lack of control, which carelessness was the sole and proximate cause of plaintiff's injuries; that because of Weaver's neglect in the particulars mentioned, both he and plaintiff were guilty of negligence which was the proximate cause of plaintiff's injuries. From various adverse rulings on motion to direct, motion for new trial failure to give instructions, and exceptions to instruct defendants appeal.
Affirmed on Stafford's appeal and reversed on that of the Gas Company.
Bradshaw, Fowler, Proctor & Fairgrave, of Des Moines, for appellants.
Hershel G. Langdon and E. C. Corry, Jr., both of Des Moines, for appellee.
About 11:20 P. M. on February 18, 1938, Robert Weaver, 17 years old, was driving a V-8 Ford south on arterial highway No. 65 with plaintiff, 21 years old, beside him in the front seat. In the rear seat was one Harold Trickey, 18 years old, and a Miss Jensen. The car was moving at a speed admitted by Weaver to be between 55 and 60 miles per hour, and estimated by another witness at 75 to 80 miles per hour. On reaching a place approximately 2 1/2 miles north of the city limits of Des Moines, they came upon the defendant, George E. Stafford, an employee of his co-defendant, Des Moines Gas Company, backing a half-ton truck out of the driveway of the Harry J. Ward residence. As to whether Stafford had completed the move of backing, and had started south, or whether he had gone past and over the middle of the pavement, is the subject of dispute. Whatever the fact may be in this regard, when the Ford came within five to seven car lengths of the truck, Weaver sounded his horn and Stafford stopped. Thereupon the Ford turned to the right onto the shoulder and into the ditch, causing plaintiff's injuries. Stafford testified that the east half of the pavement was clear, and that Weaver could and should have taken the left turn instead of the right; and Weaver claims, inferentially at least, that this was not so.
It was stipulated that Stafford was an employee of the Gas Company, and that the truck he was operating at the time of the accident was owned by it. Stafford's duties kept him employed from 3:30 P. M. until midnight. He is designated as " order man" or " trouble-shooter", his work being generally to answer complaints about the operation of various gas appliances. For that purpose he was furnished a truck by the employer.
One Ward was in the same service as was Stafford, the latter's shift beginning when the former's ended, each using the same truck. On the night of the accident, Ward had completed his work and was listening with Stafford to a radio report of a prizefight. While so engaged a trouble call came from Waterbury Circle in the west part of Des Moines. Stafford answered the call as was his duty. Ward went with him. Upon the completion of the call, Stafford started his return trip which should have taken him to the company shop. Instead he decided to take Ward to his home at Marcusville, 2 1/2 miles north from the company's nearest gas customer, and about five miles north of where he would have been had he returned directly to the company's shop.
Stafford's only purpose was to take his fellow employee home, something that he testified he had done on other occasions. The record discloses no knowledge on the part of the company of any such practice, nor of his ever having done so, until three or four days before the accident. About that time a check disclosed that the truck was showing a much larger mileage in Stafford's shift than in the others. Being called to account, Stafford told Beattie, his superior, what he had been doing. He was thereupon ordered to desist from any such practice. It is the claim of the defendant company that no employee was authorized to use the trucks for any but the employer's business, and no consent to the contrary use had ever been given. On this record, the defendant Gas Company moved for a directed verdict, among other grounds for the reason that the record affirmatively shows that it had never given consent to the use of its trucks for the purpose for which it was used on the night of the accident, and that it affirmatively appeared that the truck was being used contrary to the specific instructions of the Gas Company. The motion was overruled and the case went to a jury, resulting in a verdict of $1,000 against both defendants, and both appeal.
The court refused certain requested instructions and on its own motion gave instructions, of which one (No. 11) is the subject of complaint. We examine the appeal of Stafford first.
On the question of consent, or lack thereof, to the use of the truck, the Gas Company proceeds alone in argument. Beyond that it joins with Stafford in his contentions, on the theory that if the servant be found free from fault, there can be no liability on the part of the employer. It may well be that Stafford was not advantaged by the joinder of forces where he might have gone alone. Thus he joined with the Gas Company in asking for this, among other instructions:
With this went other requests on the same theory with reference to speed, lookout and control. This request foreclosed Stafford's right to complain of an instruction (No. 11) given in conformity therewith. In re Iwers' Estate, 225 Iowa 389, 280 N.W. 579.But Stafford argues that the court erred in instructing as it did in instruction No. 11 by telling the jury the burden was upon the defendants to make proof of the affirmative matters pleaded in defense by the Gas Company alone. We think this criticism hypercritical under this record. This defense was conducted jointly and the evidence offered by appellants was not tendered separately. The Gas Company by its pleading had undertaken a burden which the trial court properly assigned to it. The verdict went against both defendants, a finding which established as a fact that...
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