Gibbs Ex Rel. Gibbs v. Wilmeth

SNELL, Justice

(concurring specially).

I concur in the reversal and remand in this case. As held by the majority in Division I, the instruction on legal excuse as applied to this case was inadequate and prejudicial. In addition thereto there are what I think are further errors that should he considered.

The majority opinion says it is conceded the collision occurred on plaintiffs’ side of the road. Why was defendant’s car there? It was there because of something incident to its operation. Defendant’s car was either out of control or the driver failed to yield one-half the travelled way.

The car was owned by Hartford. Oren Wilmeth was an employee of Hartford and the car had been furnished to him for his use. There was no issue as to his right to use the car for personal use nor as to his wife’s right to drive it.

At the time of the accident Mrs. Wilmeth was behind the wheel and had been driving. She testified: “After the ‘give’ in the car occurred it startled my husband and he moved over and grabbed the wheel. My control of the car definitely changed. It swerved over into the other lane. My husband had the steering wheel at this time. After my husband grabbed the wheel I don’t remember anything more.”

Mr. Wilmeth died as a result of the accident. The only defendants in the case at bar are Mrs. Wilmeth and Hartford, the owner of the car.

In the trial court there was tendered an issue as to who was the driver of the car. In the light of Mrs. Wilmeth’s testimony I think there was such an issue. However, I think there is involved a more troublesome legal problem not dependent on the question of who was the driver.

By statute (section 321.493) civil liability is imposed upon the owner when damage is caused by reason of negligence of the driver, the car being driven with the consent of the owner.

Here defendants pleaded as an excuse for the car being in the wrong lane of traffic a sudden emergency not of the driver’s own making.

Legal excuse was pleaded as an affirmative defense available to escape liability for what otherwise would be a basis for liability. It does not depend upon pleading by plaintiffs. The burden of establishing legal excuse is on defendants. McMaster v. Hutchins, 255 Iowa 39 , 120 N.W.2d 509 .

The doctrine of legal excuse is based on principles set forth in Kisling v. Thierman, 214 Iowa 911, 916 , 243 N.W. 552 . In that case four situations are listed that would serve as a legal excuse. In the case before us defendant relied on #3, i. e., “Where the driver of the car is confronted by an emergency not of his own making, and by reason thereof he fails to obey the statute.”

In Winter v. Moore, 255 Iowa 1, 4 , 121 N.W.2d 82 , we said:

“For a sudden emergency confronting a motorist to be an excuse for violation of a statutory rule of the road it must not have been of his own making.” (Citations)

It is so well settled as to need no citation of authority here that concurring tort fea-sors may be jointly or separately liable if proximate cause is shown. Here plaintiffs have not pleaded negligence on the part of *102 Oren Wilmeth as a basis for recovery and his estate is not named as a defendant. Under the pleadings plaintiffs may not recover here on an original claim based on what he did.

I think grabbing control of the steering wheel away from the driver might be held to be an act of negligence, but that is not the point here. Defendants injected into the pleadings and evidence the act of Oren Wilmeth, husband of defendant Carol J. Wilmeth, and agent and employee of de-fendand Hartford, as an excuse for what would otherwise be clearly a case of actionable negligence against both defendants.

A vital element in establishing emergency as a legal excuse is that what is claimed as the excuse was not attributable to the one urging the defense. The words in Kisling v. Thierman, supra, were used in applying the rule to the driver by saying, “not of his own making.”

If the emergency was caused by Hartford’s agent I do not think that Hartford can claim the emergency was not of its own making. I do not think Hartford should be permitted to hide behind an act of its own employee and agent as a legal excuse from liability.

For the purpose of our appellate review on this question we are not discussing other elements necessary for recovery such as proximate cause. Our question is what may be used as an excuse for defendant’s car being on the wrong side of the road?

Mrs. Wilmeth offered as her excuse the claim that her husband grabbed the steering wheel and turned it counter clockwise into the path of plaintiffs’ car. Admitting, arguendo, that this might be used as a legal excuse by Mrs. Wilmeth, it does not follow that the same act may excuse the one who caused the emergency.

Assume, for the purpose of illustration, the driver of a car is driving for the convenience and at the request of the owner with the owner riding in the right front seat. By his affirmative act the owner causes the driver to lose control with resulting damage to an innocent third person. The driver might have legal excuse from liability but it would be manifestly unsound to say that the owner could create the emergency and then escape liability by hiding behind his own act. That is exactly what Hartford is doing here except for the fact that the owner was acting through an agent and not in person.

It is true that plaintiffs did not base their cause of action on allegations of negligence against Oren Wilmeth, but that is unimportant. The issue was raised by the affirmative defense pleaded by defendants and that tendered the legal issue as to who may rely on legal excuse.

Ordinarily, relief from liability of a driver relieves the owner. An owner’s employer’s liability is statutory or on the theory of respondeat superior. Here we have a unique and most unusual situation. Avoidance of what would be liability on the part of Hartford is sought because of what Hartford’s agent and employee did. Hartford should not be permitted to say that its agent caused the accident and because Mrs. Wilmeth might be excused Hartford is also excused.

In my opinion such a holding would be an erroneous distortion of the theory of legal excuse and would stretch a sound doctrine beyond the limits of plausibility. It would be manifestly unfair to the plaintiffs here.

Hartford was the owner of the car and the employer of Oren Wilmeth. Ordinarily Hartford would be liable for the tort of its agent and employee in the operation of its car. Even though neither Oren Wilmeth nor his estate is a party defendant I do not think Hartford should escape responsibility because of what he did under the doctrine of legal excuse.

If the same defense is not available to both defendants then separate verdict forms should be submitted to the jury so that the evidence might be considered in the light of *103 sound law. Superficially it might seem anomalous to say that a driver may be relieved from liability and the owner held liable, but not so when the doctrine of legal excuse is properly applied.

On retrial of this case the jury should be properly instructed.

RAWLINGS and BECKER, JJ., join in this special concurrence.