¶1(dissenting).
¶2I respectfully dissent.
¶3I agree with the reasoning and conclusion reached by the majority in Division I. *872I also agree with the majority’s announcement in Division II that, where intent is material, the mental operation of a person which induces his actions or conduct may be shown and such a person may testify as to the reasons or influences which have induced those actions or conduct. Generally, evidence as to custom may be received in motor vehicle accident cases when the state of mind of the driver is material. Jesse v. Wemer & Wemer Co., 248 Iowa 1002, 1016, 82 N.W.2d 82, 89; Langner v. Caviness, 238 Iowa 774, 778, 28 N.W.2d 421, 423, 172 A.L.R. 1135, and authorities cited therein; American Smelting & Refining Co. v. Wusich, 92 Ariz. 159, 375 P.2d 364; Alires v. Southern Pacific Co., 93 Ariz. 97, 378 P.2d 913; State v. Watson, 7 Ariz.App. 81, 436 P.2d 175; Mitchell v. Knight, Alaska, 394 P.2d 892.
¶4It is generally held that evidence of a custom which conflicts with a statutory standard, a violation of which is negligence per se, it not relevant and material. Where there is a conflict, the statute controls. 55 Am.Jur., Usages and Customs, section 17; 25 C.J.S. Customs and Usage § 10 b; Milroy v. Chicago M. & St. P. Ry. Co., 98 Iowa 188, 197, 67 N.W. 276; 1 Blashfield Cyclopedia of Automobile Law and Practice, Perm.Ed., 458, 460, section 651. Certainly, then, evidence of custom and usage offered for the purpose of excusing one’s violation of a statutory standard should be rejected. Equally well recognized in such matters is the rule that nonadmissibility of an evidential fact for one purpose does not prevent its admission for any purpose otherwise proper. Alires v. Southern Pacific Co., supra; American Smelting & Refining Co. v. Wusich, supra.
¶5I cannot agree that, because evidence of custom and practice is inadmissible to excuse a statutory violation, it will be inadmissible for all purposes, or that it will not be material or admissible to excuse a non-statutory charge of negligence in the same proceeding. Nor do I agree that evidence, inadmissible for one purpose, shifts the burden of proving its admissibility for other relevant purposes. To require a litigant to explain to the court the reasons he believes his evidence is material and relevant under such- conditions would be a strange rule of evidence indeed.
¶6Only two of the five specifications of negligence alleged in the case at bar would fall within the rule that evidence of mental attitude and belief could be found immaterial.
¶7The defendants’ specifications of negligence included failure to keep a proper lookout and failure to have the car under control, neither of which is statutorily defined. The court submitted all five of defendants’ specifications, which included the statutory regulations in sections 321.319 and 321.288 relating to failure to yield the directional right of way and failure to reduce speed when approaching and traversing an intersection. The trial court concluded there was sufficient evidence of plaintiff negligence on the issue of lookout and control prior to the accident to submit those issues to the jury. Having done so, appellant contends it committed error in rejecting evidence of Brown’s state of mind on these issues as he traversed this highway.
¶8In Division III the majority attempts to justify the failure of the trial court to admit testimony of Brown as to the basis of his mental attitude. Obviously, these are not specifications of decedent’s negligence based upon statutory violations, but relate to the common law duty to use due care under the circumstances. Thus, I cannot understand the finding of the majority that the court had no indication of why appellant wished to introduce this evidence as to custom. Plaintiff’s offer of proof went to that proposition, and no court could reasonably believe it was just another effort to establish the status of Old Highway 18.
¶9Pursuant to a hearing prior to trial, on defendants’ motion that the court “suppress any evidence with respect to the showing of custom, usage or intention of the use of said road as a through highway for any purpose *873or by any means whatsoever”, the court did sustain the motion. In so doing, it said: “The Court’s reasoning is that attempting to submit the issue of a highway and its character as a through highway to a jury, an impossible and insoluble situation is created. That plaintiff here, traveling on the favored road so established by custom and usage, would be entitled to the benefit of the rules of the road and pertaining to such favored highways, and specifically in this case an instruction under Section 321.321 of the Code.” (Emphasis added.) It was quite evident from this ruling that the court then understood the issue involved was the availability of evidence of custom and usage to establish the status of the road, not as to its use to explain the state of mind of the driver of plaintiff’s vehicle as he drove down this highway. Its ruling on the motion should have been so restricted.
¶10Plaintiff’s counsel at that time made it quite clear he deemed evidence of custom and usage “is important,” but in his effort to establish the highway as a through highway he was relying chiefly on the actions of county officials. The court was well aware of these contentions, and I doubt that it intended to deny the plaintiff the right to introduce evidence of custom and usage for any other purpose in this lawsuit. If it did, I would find reversible error in that ruling.
¶11Later in the trial when the witness Brown was asked, “As you drove down that highway going out of Britt on July 24, 1965, did you think that you were on a through highway?”, the court sustained defendants’ objection that it was “incompetent, irrelevant and immaterial and not within the province of this witness to be able to answer it”, and when asked, “as you approached this intersection where the collision occurred, what was your state of mind ?”, the court sustained defendants’ motion to strike Brown’s answer that “Well, I thought I had the right of way”, based upon the ground that “the basis that the state of mind of the witness is wholly immaterial, incompetent and irrelevant, statement of opinion, which is not the subject to opinion testimony.” These rulings were wrong and, when the court admonished the jury “to give it no consideration for any purpose whatever during your deliberations”, it committed reversible error. (Emphasis added.)
¶12It cannot be rightly contended the court was not aware of the purpose of this evidence and the reason plaintiff offered evidence of custom and usage at that time. In his offer of proof Brown related his use of this highway as a resident, as a bus driver, and as an observer of that use by other persons in that locality. He testified : “Through the years that I have been using that road. I have considered it a through highway and until a few years before that, it had been the only highway through there. … There was no. change made in the stop sign situation with respect to roads intersecting old 18 when new 18 came in. I think it probably was common knowledge in the area around Britt and Hancock County … on July 24, 1965, that old Highway 18 was a through road. I considered it a through highway. … As I approached the intersection where the collision occurred … my state of mind was that I thought I had the right-of-way.” (Emphasis added.)
¶13It is my feeling that the court could not possibly believe this evidence of custom and usage was then being offered to prove the status of the road, that it erroneously refused this evidence and evidence of Brown’s state of mind, and that this evidence was not offered for any “limited” purpose. Its purpose was obviously to meet defendants’ alleged grounds of negligence, to show plaintiff’s driver had used due care under the circumstances, and to show plaintiff’s freedom from contributory negligence at that time and place. As bearing on plaintiff’s obligation to use due care under these circumstances, it was admissible.
¶14The majority holds, because this evidence might not have been admissible on the *874statutory violation issue, the plaintiff has the obligation to show its admissibility on the other specifications of negligence. Although I have no quarrel with the rule that error will not lie in the exclusion of evidence offered to explain or excuse a statutory or per se violation, even though admissible on another undisclosed ground, I believe the majority has placed the burden here upon the wrong party. I believe it was defendants’ burden to show why this evidence was not admissible under the specifications alleged. As I see it, when the trial court was convinced there was substantial evidence of plaintiff’s negligence in addition to statutory violations, it should have permitted evidence of Brown’s state of mind and its basis, with proper instructions as to its materiality. "Otherwise, these other issues should not have been submitted to the jury.
¶15The majority admits such evidence is admissible as bearing on the common law duty to maintain a proper lookout and control. How can it be said the plaintiff had to do more than call the court’s attention to the materiality and relevancy of this evidence under these issues ? Clearly, this was done in the case at bar.
¶16The majority cites several cases to sustain its position that the court here was not properly advised as the grounds for admitting this state-of-mind evidence. These cases are all premised upon the assumption that the materiality is not apparent. They are not applicable here.
¶17I am abundantly satisfied under this record that the able trial court was or should have' been aware of the material purpose of this evidence and should have overruled the defendants’ objections thereto. When submitting the statutory specification of failure to yield found in section 321.319, it should have given a cautionary instruction to the effect that any evidence of usage and custom could not be considered to excuse noncompliance with those statute requirements. Dugan v. Fry, 3 Cir., N.J., 34 F.2d 723, 725; Tobin v. Goodwin, 157 Wash. 658, 290 P. 215. Also see Alires v. Southern Pacific Co., supra; Vegodsky v. City of Tucson, 1 Ariz.App. 102, 399 P.2d 723; Wood v. Melton, 179 Kan. 128, 293 P.2d 252; Irwin v. Graham, 62 N.M. 72, 304 P.2d 875; Mrs. Baird’s Bakeries, Inc. v. Roberts (Tex.Civ.App.), 360 S.W.2d 850. Also see 77 A.L.R.2d 1327-1343 for an annotation on custom or practice of drivers of motor vehicles as affecting the question of negligence.
¶18Being unable to tell whether the jury here found the defendants were not negligent, or found the plaintiff’s decedent and his driver Brown did not use due care under the circumstances, we should reverse the judgment and return the case for a new trial.
¶19SNELL, BECKER and LeGRAND, JJ., join in this dissent.