White v. Zell

• Decision Date: 23 November 1937
• Docket Number: 43982.
• Citation: White v. Zell, 224 Iowa 359, 276 N.W. 76 (Iowa 1937)
• Parties: WHITE v. ZELL.
• Court: Iowa Supreme Court

276 N.W. 76

224 Iowa 359

WHITE v. ZELL.

No. 43982.

Supreme Court of Iowa.

November 23, 1937

Appeal from District Court, Fayette County; W. L. Eichendorf, Judge.

This is an action at law brought by plaintiff as administratrix of the estate of her deceased husband for the death of her husband while riding as a guest with the defendant on March 12, 1935.The petition is based on a charge of recklessness and intoxication on the part of the defendant.The case was submitted to a jury after the court had overruled defendant's motions to direct both at the conclusion of plaintiff's testimony and at the end of all the testimony.A verdict was returned in favor of the defendant which was set aside on motion for a new trial, and the defendant brings this appeal.The facts will be found in the opinion.

Affirmed.

Grimm Elliott, Shuttleworth & Ingersoll, of Cedar Rapids, and Estey & Estey, of West Union, for appellant.

Guy Linville, of Cedar Rapids, and M. M. Cooney, of West Union for appellee.

SAGER Justice.

On March 12, 1935, defendant-appellant, Zell, who will hereafter be referred to as defendant, a resident of Oelwein in this state, invited plaintiff's intestate to ride with him from Independence, in Buchanan county.They were both married men.From Independence, Zell and plaintiff's intestate proceeded to Cedar Rapids, where they met at the apartment of one Cathryn Martin, at which place was also one Dorothy Silveria.After meeting these women all had a drink of whisky from a pint bottle, which at the time was about three-fourths empty.Neither the size of the drink nor the potency of the whisky is made to appear.After a brief stop at the apartment of these women the party proceeded in defendant's car southward from Cedar Rapids on highway No. 161 to a certain inn, where setups were ordered and at least one more drink of whisky was had by all.This drink, whether from the bottle or from some other receptacle does not appear, was from a full pint bottle produced by plaintiff's intestate, what remained in the other bottle, if anything, having been left in Cedar Rapids.The men had had dinner at Cedar Rapids at about 9 or 9:30 o'clock that evening, before coming in contact with the women of their party.

After leaving the inn they started back toward Cedar Rapids on a part of highway No. 161 which takes an easterly and westerly course before turning north toward Cedar Rapids.At the place where this accident occurred there is a ten-degree bend.At the point where the pavement turns north a road extends to the westward.The pavement is extended a short distance beyond where the curve starts, and from thence on this westward highway is made up of crushed rock.As the defendant approached this turn he proceeded about to the center of the pavement, apparently having overlooked up to that time the turn to be made.When he noticed that he was getting off his course he turned his car sharply to the right, a move which took the wheels off onto the muddy shoulder, made a turn to the left to right it, and brought it into a series of posts set along the highway, from whence it glanced in a northeasterly direction and came to rest on its side.Plaintiff's intestate sustained injuries from which he died; hence this litigation.

The defendant appeared as a witness in his own behalf, but his testimony is limited in effect to a statement that he was driving a Buick that night, with brakes in good condition, lights good, and weight from 4200 to 4400 pounds.

The women in the car testified that they noticed nothing " out of the ordinary" in defendant's driving; that everybody was sober; that the first intimation they had of impending trouble was by the movement of the car after it went off the pavement to the right on the first effort made by the defendant to follow the curve.

The record is long and we have set out only the details which seem essential to a solution of the problems hereinafter discussed.Likewise, the learning and diligence of counsel have led them to investigate a large number of authorities, and to invite us down numerous byways of the law which we do not have time, nor find it necessary, to travel.

At the conclusion of plaintiff's case and again at the end of all the testimony, which is all comprehended in the foregoing except the evidence of plaintiff that defendant, the morning after the accident, said that he was driving too fast to make the curve and that he and her intestate had picked up a couple of girls and gone to a roadhouse to get a few drinks, defendant moved for a directed verdict.These motions were based on many grounds, which may be summed up in the statement that a verdict for the plaintiff would be wholly unsupported by the evidence; that the evidence affirmatively established that plaintiff's intestate was a guest; and that there was no sufficient evidence in the record to warrant a finding against the defendant on the basis of recklessness.The court overruled these motions generally and, for reasons which will appear later, we think the court was right in its ruling.

Defendant on this proposition cites a very large number of authorities among them the cases recently decided by us defining the term " reckless" as it is used in our guest statute.It would serve no useful purpose to either cite or analyze these cases.It is sufficient to say that this proposition has been met in Wright v. What Cheer Clay Products Co.,221 Iowa 1292, 267 N.W. 92, in which Anderson, J., gathered together a large number of our decisions, analyzed them, and expressed the views of this court in a way which makes it unnecessary to...