Yost v. Miner

Decision Date10 December 1968
Docket NumberNo. 52977,52977
Citation163 N.W.2d 557
PartiesStella L. YOST, Executrix of the Estate of Donald W. Yost, Deceased, Appellee, v. Robert Richard MINER, Appellant.
CourtIowa Supreme Court

Pendleton & Pendleton, Storm Lake, Daniel D. Sanderson, Estherville, and Robert F. Culver, Emmetsburg, for appellant.

Fitzgibbons & Fitzgibbons, Estherville, for appellee.

RAWLINGS, Justice.

Plaintiff brought this action, as executrix, to recover for wrongful death of her husband which resulted from a motor vehicle collision. Defendant counterclaimed for damages to his person and property. The jury returned a verdict of $15,000 for defendant. Trial court sustained plaintiff's motion for judgment notwithstanding the verdict but overruled the motion for new trial on her cause of action. Defendant appealed from the ruling on motion for judgment notwithstanding, and plaintiff cross-appealed from the overruling of her motion for new trial. We reverse on both appeals.

The parties agreed to submit the case under jury instructions placing the burden of proving freedom from contributory negligence on the party seeking to recover. The accident occurred prior to July 4, 1965, effective date of the amendment to section 619.17, Code of Iowa, which changed the burden of proof. However, trial commenced before we had passed on its retroactivity in Schultz v. Gosselink, Iowa, 148 N.W.2d 434.

Trial court sustained the motion for judgment notwithstanding on the ground counterclaimant failed to produce any evidence whatsoever as to his actions just prior to the collision, therefore failed to make any affirmative showing of freedom from contributory negligence. He also commented, the record indisputably discloses counterclaimant was intoxicated at time of the accident.

I. There is no direct evidence of counterclaimant's conduct or movement of his vehicle immediately prior to the impact. This, however, does not necessarily mean there is insufficient evidence to create a jury question on his freedom from contributory negligence. Where a motion for judgment notwithstanding the verdict has been sustained we give claimant's evidence the most favorable construction it will bear. R.C.P. 344(f)(2); and Pound v. Brown, 258 Iowa 994, 995, 140 N.W.2d 183.

The collision occurred on State Highway 9 about 6 1/2 miles east of Estherville at about 11:45 A.M., July 21, 1964. The weather was clear, the highway paved, level and dry. Decedent, Donald Yost, was driving his Oldsmobile in an easterly direction. Defendant Miner was driving his Nash in a westerly direction.

Robert Sierck, only witness to the accident, (Miner had no recollection of the incident), testified that as he was driving east from Estherville about 11:30 A.M., July 21, he observed Yost's blue Oldsmobile approximately a quarter mile in front of him, having followed it since leaving Estherville. Mr. Sierck was driving 60 miles per hour and remained about the same distance behind the Oldsmobile. He noticed nothing unusual about the way Yost was driving until, '* * * all of a sudden he just kind of started gradually pulling over to the left of the road and all of a sudden I seen the crash'. The cars hit head-on and both were demolished. Sierck testified he did not observe the Miner car until it flew up in the air on impact.

Mr. and Mrs. Charles Rolling met defendant's Nash about one mile east of the accident scene. They saw his car, about half a mile away, gradually drift from the north lane into their south lane. Mr. Rolling testified: 'He stayed on my side of the road I would say from 3--400 feet. His right wheels were right on the white line and the left wheels were completely on the south side of the road. When I saw him I just let off the accelerator and started wondering what I was going to do and then he swerved back on his own side of the road and went on by. When he went by I looked at him. He was sitting there with his head kind of over towards the window. And I told my wife at the time, 'I think that boy's pretty sleepy. From what I observed, he was just sitting there driving with his right hand and with his head leaning over toward the door.'

Under supervision and direction of the sheriff of Emmet County measurements were taken at the scene. It was determined point of impact was in defendant's lane, north of the center line. The Yost car left skid marks which started in the south lane and proceeded at an angle into the north lane. The Miner vehicle left no skid marks.

Plaintiff, in defending on the counterclaim, is faced with overwhelming evidence the collision occurred on counterclaimant's side of the road. She does not seriously contend otherwise. Rather plaintiff takes the position counterclaimant was so drunk he approached decedent's car on the wrong side of the road, and her decedent turned into the left lane in an effort to avoid the collision. No one testified regarding location of defendant's car immediately prior to impact. The fact the accident happened on defendant's side of the road indicates exercise of due care for his own safety.

In Smith v. Darling & Co., 244 Iowa 133, 56 N.W.2d 47, trial court entered judgment notwithstanding the verdict on the ground, inter alia, there was no evidence of decedent's freedom from contributory negligence. Testimony there disclosed the collision occurred on decedent's side of the highway and we held this was substantial evidence he was in the exercise of ordinary care at the time. In so doing this court said, loc. cit., 244 Iowa 143, 56 N.W.2d 53 'Thus testimony which raises a jury question on the issue of defendants' failure to give decedent half the roadway also raises a jury question on the issue of the latter's freedom from contributory negligence.' That holding was followed in Miller v. Stender, 251 Iowa 123, 131, 98 N.W.2d 338, and Weppler v. Smith, 252 Iowa 679, 688, 108 N.W.2d 247.

Trial court erred in sustaining plaintiff's motion for judgment notwithstanding the verdict on the ground referred to.

II. In ruling on the motion for judgment notwithstanding, trial court stated: '* * * the record, without dispute, shows that the defendant was intoxicated at the time of the accident.' It is not clear what, if any, bearing this statement had on the ruling, but plaintiff argues such intoxication bars defendant from recovering on his counterclaim. For purpose of this opinion, we accept trial court's conclusion the undisputed evidence shows defendant was intoxicated. However, it does not follow his right of recovery is barred as a matter of law.

'* * * even if the fact of intoxication were conceded there would still be a jury question whether it constituted negligence causing or contributing to his injuries * * *. Intoxication in and of itself is not, as defendant seems to contend, conclusive evidence of contributory negligence.' Nicholson v. City of Des Moines, 246 Iowa 318, 324, 67 N.W.2d 533, 536; Cramer v. City of Burlington, 42 Iowa 315, 320; and Nichols v. Havlat, 142 Neb. 534, 7 N.W.2d 84, 87.

The act of driving an automobile while intoxicated is a violation of section 321.281, Code of Iowa. However, it is not negligence per se. Chandler v. Harger, 253 Iowa 565, 570--572, 113 N.W.2d 250, and citations; Cramer v. City of Burlington, supra; Ward v. Chicago, St. P., M. & O. Ry. Co., 85 Wis. 601, 55 N.W. 771, 772; Prosser, Law of Torts, Third Ed., section 32, page 157; 38 Am.Jur., Negligence, section 203, pages 883--884. Before a drunken driver can be held liable for injuries to another or barred from recovering for his own injuries, his intoxicated condition must be translated into outward conduct which is negligent and bears a causal relationship to the injury. American Employers' Ins. Co. v. McLean, 5 Cir., 127 F.2d 275; Lynch v. Clark, 183 Or. 431, 194 P.2d 416, 422--423; Allan H. McCoid, Intoxication and Its Effect Upon Civil Responsibility, 42 Iowa L.Rev. 38, 46--47, 53.

Evidence of an intoxicated condition is properly admissible as one of the circumstances surrounding conduct showing a lack of due care under the circumstances. Hughes v. Chicago, R.I. & P. Ry. Co., 150 Iowa 232, 236, 129 N.W. 956; Chandler v. Harger, supra; American Employers' Ins. Co. v. McLean, supra; Roether v. Pearson, 36 N.J.Super. 465, 116 A.2d 529, 531; Lynch v. Clark, supra; Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 798; 38 Am.Jur., Negligence, section 203, pages 883--884; McCoid, Ibid, loc. cit., 54--57. In other words, a person who intentionally or negligently becomes intoxicated is held to the same standard of care as if he were sober. Hughes v. Chicago, R.I. & P. Ry. Co., supra; Remmenga v. Selk, 150 Neb. 401, 34 N.W.2d 757, 763; Nichols v. Havlat, 142 Neb. 534, 7 N.W.2d 84, 87; Cleveland Ry. Co. v. Owens, 51 Ohio App. 53, 199 N.E. 607, 609--610; Lynch v. Clark, supra, 194 P.2d loc. cit., 424; Prosser, Law of Torts, Third Ed., section 32, page 157; and 65A C.J.S. Negligence § 295, page 1042.

The matter of defendant's intoxication and its causal connection to the accident was submitted to the jury on instructions which are not here questioned. The jury might have found defendant's intoxication was not translated into any negligent conduct which caused or contributed to the accident. Intoxication, if conceded, would not in itself, as a matter of law, bar his right to recover.

III. Plaintiff's cross-appeal is based on trial court's order overruling her motion for new trial. Therein she urges, the court erred in failing to instruct the jury on sudden emergency.

As stated supra, we are here concerned with both plaintiff's action, and defendant's counterclaim. Noticeably plaintiff does not identify her brief and argument with defendant's counterclaim or her petition. Rather she sets forth 'Proposition Relied on for Affirmance', and argues in support of trial court's order setting aside the verdict for defendant. Subsequently, under what is designated 'Part II' is found 'Brief and Argument on P...

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