Wharff v. McBride

• Decision Date: 09 February 1971
• Docket Number: No. 54207,54207
• Citation: 183 N.W.2d 700
• Parties: George WHARFF and George Wharff, Administrator of the Estate of Susan E. Wharff, Deceased, Appellants, v. Marjorie E. McBRIDE, Moingona Girl Scouts Council of Central Iowa, Appellees.
• Court: Iowa Supreme Court

Page 700

183 N.W.2d 700

George WHARFF and George Wharff, Administrator of the Estate of Susan E. Wharff, Deceased, Appellants, v. Marjorie E. McBRIDE, Moingona Girl Scouts Council of Central Iowa, Appellees.

No. 54207.

Supreme Court of Iowa.

Feb. 9, 1971.

Craig D. Warner of Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, for appellants.

Hopkins & Bump, Des Moines, for appellee McBride.

Kent M. Forney of Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellee Moingona Girl Scouts Council of Central Iowa.

MASON, Justice.

Plaintiff's appeal in this law action tried to a Polk county jury presents as the primary question for determination the status of plaintiff's decedent while riding in an automobile owned and operated by defendant Marjorie E. McBride.

The action was instituted by administrator to recover for the death of his 11-year-old daughter Susan E. Wharff who died as the result of injuries received in a one-car accident which occurred May 25, 1968. At the time Susan was a dues-paying member of Girl Scout troop 485 in Des Moines which is alleged to be a regularly established and operating subdivision of defendant Moingona Girl Scouts Council of Central Iowa. This defendant will be referred to when necessary as the Council. Although there are two plaintiffs named in the caption of this action, the matter was treated in the trial court as one brought by the administrator only.

Administrator alleges in one division of his petition specific acts of negligence as a basis for recovery against McBride and the Council, in another the doctrine of res ipsa loquitur. It is plaintiff's theory of pleading in these divisions, as we understand, that an agency existed between McBride and the Council at the time of the accident and such a definite and tangible benefit flowed to the Council as to remove plaintiff's decedent from the status of a guest in the McBride car and thus impose liability on the Council for the driver's alleged negligence.

In separate divisions administrator asks judgment against defendant McBride only. In one he alleges her specific acts of negligence were the proximate cause of his daughter's death and in the other he seeks judgment against this defendant under the doctrine of res ipsa loquitur.

Defendants' motions for directed verdict made at the close of plaintiff's evidence and renewed at the close of all evidence were overruled.

The court submitted the case to the jury on specific negligence and under the doctrine of res ipsa loquitur. They were instructed that if they found plaintiff could recover against McBride under either theory they should then determine whether recovery should be against McBride only or against both her and the Council.

In response to special interrogatories the jury found the estate was entitled to recover $10,000 for the conscious pain and suffering of Susan Wharff between the time of the accident and her death. In answer to another interrogatory they found the estate was entitled to recover $1895.95 for damages sustained by virtue of her death. The latter amount is alleged to be the cost of necessary hospital and medical attention for decedent following the accident and the cost of her funeral. She had a life expectancy of 54.58 years. Judgment was entered against both defendants for $11,895.95.

Plaintiff moved for new trial asserting the jury's verdict was contrary to the law set forth in the court's instruction on damages and to the evidence relative to the loss of decedent's estate. He contended that in the interest of justice a new trial, limited to the issues of damages, should be granted since the verdict failed to administer substantial justice.

Both defendants moved for judgment notwithstanding the verdict. The court sustained the motions on the basis the evidence was insufficient to warrant a finding defendant McBride was an agent or employee of defendant Council and insufficient to overcome the presumption plaintiff's decedent was a guest in the car driven by defendant McBride. It also ruled evidence of a tangible benefit flowing to McBride was insufficient to warrant a jury finding that decedent was not a guest in the McBride car. Other grounds urged by defendants in support of their motions which were not disposed of in the court's ruling on the question of agency and the guest statute were overruled. Thus, it was the court's position no ruling was necessary on plaintiff's motion for new trial.

The facts are not in serious dispute. Decedent, Susan Wharff, and Mrs. McBride's twin daughters were members of the same Girl Scout troop which was under the jurisdiction of defendant Council. Troop members planned to take an outing or trip from Des Moines to Ledges State Park near Boone on May 25, 1968 to provide the girls with an outing and to further their scout training. These trips are of the Council's program but are autonomously planned by the troop members with the Council having little or no knowledge of such outings. The dues of 50 cents a month which each girl pays goes towards defraying costs of these outings but are not used to pay for transportation to and from any of these outings.

It should be noted in considering the case the Council is a nonprofit Iowa corporation recognized and approved by the Girl Scouts of the United States of America. The Girl Scouts of the United States of America is an organization chartered by an act of Congress and headquartered in New York City. The scout organization is based on volunteers with a small corp professional staff which makes general policies and procedures but apparently exercises no direct control over the activities of the various troops within the organization. This is especially true with respect to transportation of girls between city and camping ground activities.

Mrs. McBride had previously volunteered her services as a driver for the outing to Mrs. Krumrey, the troop leader. Mrs. McBride stated she felt she had moral obligation to be a driver in view of the fact her daughter had been driven several times by other parents to similar outings. Finally, it should be noted selection of a troop leader is usually done by the troop itself and is usually one of the parents who has a daughter in the troop. Evidence indicates the Council has nothing to do with selection of the troop leader. The leader is a volunteered position receiving no pay from any source.

The day of the outing Mrs. McBride went to a school parking lot about 8:30 a.m. as planned. It was then arranged that the troop leader drive the first car and Mrs. McBride follow in her car. The trip to the state park was uneventful. However, the stay at the park was cut short because of inclement weather. As a result, Mrs. Krumrey, the troop leader, instructed everyone to return to Des Moines. The accident happened on this return trip when, for one reason or another which is not clear, the McBride car swerved out of control, went into the ditch, through a fence, and stopped in a field. Evidently, the car went over the embankment, the right front door flew open and plaintiff's decedent and one of the McBride girls were thrown from the car. They were found 'hunched up' under the car behind the right front tire. The car had to be raised by jacks to free the girls. There were no objects found on the highway that could have caused the mishap, although the surface was possibly slick from rain. The mechanical condition of the McBride car before and after the accident was considered good. After the accident, Susan was brought to her parents home and immediately taken to the hospital where she died five hours later from her injuries.

Plaintiff asserts the court erred in (1) granting judgment notwithstanding on the basis of insufficient evidence to sustain a finding of agency between defendant McBride and defendant Council, (2) granting judgment notwithstanding on the basis of insufficient evidence to justify a jury finding of tangible benefit to Council, (3) granting such judgment on the basis of insufficient evidence to warrant a jury finding of tangible benefit to McBride and (4) failing to grant a new trial because of error in fixing the amount of recovery.

I. As pointed out under the theory of pleading employed, plaintiff seeks to recover against each defendant on the basis the proximate cause of Susan's injury and death was McBride's alleged negligence in the operation of her vehicle. In Divisions I and III the Council's liability for negligence is predicated on an alleged agency between it and McBride. Even if plaintiff succeeded in generating a jury question as to existence of an agency at the time of the accident, he still had the burden of establishing that his decedent was other than a guest while in McBride's automobile as recovery for ordinary negligence would be barred under the guest statute. His second and third assignments of error thus present the primary question stated for determination.

Section 321.494, Iowa Code, 1966, provides:

'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.'

We have frequently said '* * * one who claims the guest statute is not applicable has the burden to prove his status was other than a guest. * * * (citing authorities) Not only does plaintiff have the burden to establish * * * (his decedent's status), the action being predicated upon negligence of the operator or owner, but there is a presumption, rebuttable, that she was a guest within the meaning of section 321.494. * * * (citing authorities)

"In Knutson v. Lurie, 217 Iowa 192, 195--197, 251 N.W. 147, 149, we held the occupant of an automobile driven by another is neither a guest nor mere invitee...