Webb v. Moreno

• Decision Date: 14 July 1966
• Docket Number: No. 18253.,18253.
• Parties: William Henry WEBB, Appellant, v. Helen MORENO and Fredrick Cornell Priester, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

363 F.2d 97 (1966)

William Henry WEBB, Appellant, v. Helen MORENO and Fredrick Cornell Priester, Appellees.

No. 18253.

United States Court of Appeals Eighth Circuit.

July 14, 1966.

Harry E. Wilmarth, of Shuttleworth & Ingersoll, Cedar Rapids, Iowa, for appellant; Caryl W. Garberson and James H. Carter, of Shuttleworth & Ingersoll, Cedar Rapids, Iowa, on the brief.

David M. Elderkin, of Barnes, Wadsworth, Elderkin, Locher & Pirnie, Cedar Rapids, Iowa, for appellees.

Before VOGEL, Chief Judge, and MATTHES and MEHAFFY, Circuit Judges.

MATTHES, Circuit Judge.

In this personal injury diversity case, the jury rendered a verdict in favor of Helen Moreno, plaintiff below, and against William Henry Webb and Fredrick Cornell Priester, defendants below, in the amount of $23,750.00. From the judgment entered on the verdict only Webb has appealed. Priester, who has not appealed, is an appellee in this court. The automobile collision from which this litigation emanates occurred in Iowa, and the substantive law of that state controls.

The basic facts were established by uncontradicted evidence. In July, 1964, appellant was the owner of the Chevrolet automobile involved in the collision. On the evening of July 11 (Saturday), pursuant to appellant's consent, William Henry Webb, Jr., then 18 years of age and a member of appellant's household, operated the automobile from the Webb home in Davenport, Iowa to Cedar Rapids, Iowa, a distance of 60 to 70 miles, in order that young Webb could spend that night and the next day visiting with Douglas Fulrath, a former school chum, who resided in Cedar Rapids. Unbeknownst to appellant, young Webb arranged for his long time friend, Fredrick Cornell Priester, also 18 years of age, and Priester's girl friend, Gretchen Stegmeier, both residents of Davenport, to accompany him on the trip to Cedar Rapids.

After the three arrived at their destination they, in company with Fulrath and a young lady, attended a dance in Cedar Rapids. At approximately 12:30 o'clock that night, the party of five returned to Fulrath's home in that city. Priester was confronted with the necessity of returning Gretchen to her home in Davenport. Young Webb, who desired to spend the night with Fulrath, entrusted Priester with the automobile for that purpose. It was understood that Priester was to drive back to Cedar Rapids. After Priester had completed the journey to Davenport, he departed for Cedar Rapids, leaving at approximately 3:00 o'clock Sunday morning. While traveling toward his destination, he fell asleep at the wheel and drove the automobile into the rear end of the vehicle in which Mrs. Moreno was riding. She sustained serious injuries as a consequence of the collision.

At the close of all of the evidence, appellant moved the court to direct a verdict in his behalf on the ground that plaintiff had failed to prove that his automobile was being operated by Priester with the knowledge and consent of appellant. In denying the motion, the court stated: "Gentlemen, it is a close question. The court is of the view, however, that a jury question is generated, * * *."

Appellant's sole contention on appeal is centered around the issue of consent. He asserts, in effect, that the evidence conclusively established that Priester was driving the automobile without the consent of the owner when the collision occurred, and that consequently the court erred in failing to direct a verdict for appellant.

We turn then to the evidence bearing upon that question, and of course, review the evidence in the light most favorable to appellee Moreno.

Appellant purchased the Chevrolet automobile in December, 1962. He owned another automobile. Appellant consistently permitted his son, William, Jr., who obtained a driver's license in 1962, to drive the Chevrolet when he so desired. During young Webb's senior year in high school, his father permitted him to drive the automobile to Beloit, Wisconsin and to retain exclusive possession thereof for several days. When William, Jr. obtained his driver's license, (1962), his father instructed him not to permit any other person to drive the automobile. Appellant testified that he had not, subsequent to the initial admonition, instructed William, Jr. not to permit others to drive the automobile. Indeed, there is evidence in this record from which the jury could believe that appellant was aware of Priester having driven the automobile on at least five occasions prior to July 11, 1964. As stated at the outset, Priester and Webb, Jr. had been close friends for many years. They visited each other in their respective homes. Young Webb drove Priester's automobile and vice versa. Although, as shown earlier, appellant was unaware that Priester and Gretchen were going to accompany his son on the trip to Cedar Rapids, the fact is that appellant did not impose any restrictions on the use of the automobile during that trip. When appellant was asked "and you certainly didn't tell him when he left to go to Cedar Rapids not to let anyone drive the car", he responded, "no, I didn't." Appellant also admitted that he knew from the time his son started to drive, that on occasions there would be other young people in the automobile; that he made no inquiry as to whether there would be "dates" on the Cedar Rapids trip. In fact, appellant made no attempt to ascertain who, if anyone, intended to make the trip with his son. Appellant also stated that he would not have objected to Priester and Gretchen accompanying his son. Finally, appellant conceded that if he had been requested to do so, he probably would have consented to Priester driving the automobile.

Section 321.493, Iowa Code Annotated, provides in pertinent part: "In all cases where damage is done by any motor vehicle by reason of negligence of the driver, and driven with the consent of the owner, the owner of the motor vehicle shall be liable for such damage."

This statute has been the subject of judicial consideration on repeated occasions. The Supreme Court of Iowa has reviewed cases, too numerous to cite, which presented the question of whether the motor vehicle was driven with the consent of the owner within the meaning of Sec. 321.493. We have examined all of the authorities to which our attention has been directed by the parties, and others disclosed by independent research. The Supreme Court of Iowa, in McKirchy v. Ness, 256 Iowa 744, 128 N.W. 2d 910 (1964), relied upon by appellant and appellees, clearly expounds the principles to be applied in resolving the question. We therefore quote at length from that opinion:

"We

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