Volume 257 — Iowa Reports

<bold>MOTOR VEHICLES: Guest status — riding for benefit of owner or</bold> 1 <bold>both passenger and owner.</bold> One who rides in an automobile for the definite and tangible benefit of the owner or operator or for the mutual, definite and tangible benefit of owner or operator on one hand and of himself on the other is not a guest within the meaning of the guest statute. Section <cross_reference>321.494</cross_reference>, Code of 1962. <bold>MOTOR VEHICLES: Guest status — factors considered.</bold> On the 2 issue of guest status, matters to be ascertained include the primary motivation for the undertaking determined from evidence of intention of the parties, their relationship, who instigated the trip, its extent, and who was to pay the expense thereof. <bold>MOTOR VEHICLES: Guest status — presumption from occupancy —</bold> 3 <bold>burden to rebut.</bold> There is a presumption, rebuttable, that an occupant of a car operated by another is a guest within the meaning of the guest statute, placing the burden upon the one contending otherwise to prove it. Section <cross_reference>321.494</cross_reference>, Code of 1962. <bold>MOTOR VEHICLES: Guest status — benefits to owner.</bold> Such 4 benefits to operator or owner of a motor vehicle as are incidental to hospitality, social relations, companionship or the like are not definite and tangible as are contemplated by the guest statute. Section <cross_reference>321.494</cross_reference>, Code of 1962. <bold>EVIDENCE: Judicial notice — distance between cities.</bold> Judicial 5 notice is taken of the fact that the distance between Fort Madison and Burlington does not exceed 15 or 20 miles.<page_number>Page 152</page_number> <bold>MOTOR VEHICLES: Passenger for hire — guest status — jury</bold> 6 <bold>issue as to compensation paid for trip.</bold> Where plaintiff suggested he and defendant take a trip in defendant's car to another city of about 20 miles distance and defendant agreed if plaintiff would pay for the trip and buy gasoline and plaintiff paid $2.00 for gasoline and the jury could find he paid an additional $2.00, it would be justified in finding the compensation was so far in excess of a nominal contribution for expenses that plaintiff would not be a guest but a passenger for hire. <bold>MOTOR VEHICLES: Injury to passenger — negligent operation —</bold> 7 <bold>evidence of defendant's plea of guilty.</bold> In an action for injury to a passenger in defendant's automobile based on negligent operation, evidence of defendant's plea of guilty in a justice of the peace court to a charge of failure to have his vehicle under control was admissible as substantive proof of negligence as well as for impeachment, and was not inadmissible under section <cross_reference>321.489</cross_reference>, Code of 1962.

<bold>CERTIORARI: Law action challenging legality of acts — review.</bold> 1 Certiorari is a law action to determine whether the acts challenged were legal, and generally, questions or findings of fact are not reviewable; it is triable de novo. <bold>CONTEMPT: Punishment for violating injunction.</bold> Sentence of five 2 days imprisonment and a fine of $100 for contempt for violation of an injunction restraining defendant from in any manner molesting his wife was not illegal or vindictive. <bold>CONTEMPT: Punishment — power of court.</bold> Power to punish for 3 contempt for disobedience of its orders is inherent in a court, and is essential to the efficient discharge of judicial functions. <bold>CONTEMPT: Violation of a clear and unambiguous decree or order</bold> 4 <bold>— excuses.</bold> When the terms of a decree or other court order are clear and unambiguous a contemnor will not be heard to say he did not understand it and did not intend to violate it. <bold>CONTEMPT: Certiorari — evidence reviewed — weight given trial</bold> 5 <bold>court's findings of fact.</bold> Upon certiorari brought to question a judgment of contempt this court will review the evidence, although giving much weight to trial court's findings of fact.<page_number>Page 208</page_number>

<bold>PLEADING: Amendments — failure to file within seven days after</bold> 1 <bold>ruling on motion to dismiss — final adjudication — order</bold> <bold>granting additional time reversed.</bold> Where plaintiff in a personal injury action failed to amend her petition within seven days after a ruling sustaining defendant's motion to dismiss the petition such failure to plead amounted to a final adjudication, and an order of trial court entered ex parte granting plaintiff leave to amend is contrary to the rules and is reversed. Rule 86, Rules of Civil Procedure.<page_number>Page 454</page_number> <bold>PLEADING: Amendments — application must be made within seven</bold> 2 <bold>days after ruling on motion to dismiss.</bold> Trial court may grant additional time for filing amendments to pleadings but application therefor should be filed within the seven days following ruling on a motion to dismiss. Rule 86, Rules of Civil Procedure.

<bold>DIVORCE: Cruel and inhuman treatment without physical violence.</bold> 1 There may be cruel and inhuman treatment such as to endanger life without physical violence and unjust accusations of infidelity may amount to such conduct. <bold>DIVORCE: Cruel and inhuman treatment — conduct that</bold> 2 <bold>constitutes.</bold> Conduct by one of the married parties must be something out of the ordinary course of marital relations; something needless and beyond the ordinary arguments and quarrels of married life, which ordinary experience of men or some substantial evidence tells us will endanger life. <bold>DIVORCE: Corroboration by defendant.</bold> Admissions of 3 defendant-wife in a divorce action and her failure to deny plaintiff's testimony are persuasive and furnish ample corroboration for plaintiff's case. <bold>DIVORCE: Cruel and inhuman treatment on part of wife —</bold> 4 <bold>faultfinding, unjust accusations, criticisms long</bold> <bold>continued.</bold> In a husband's divorce action, evidence of a long continued, regular and persistent course of faultfinding, unjust accusations of infidelity, criticisms and belittlings on defendant's part established conduct that was cruel and inhuman and that plaintiff's health was so affected as to endanger his life.

<bold>WORKMEN'S COMPENSATION: Fact findings of commissioner —</bold> 1 <bold>conclusiveness.</bold> Industrial commissioner's findings of fact are conclusive<page_number>Page 767</page_number> where the evidence is in dispute or reasonable minds may differ on inferences fairly to be drawn from the facts. Section <cross_reference>86.29</cross_reference>, Code of 1962. <bold>WORKMEN'S COMPENSATION: Evidence — testimony in conflict with</bold> 2 <bold>incontestable facts.</bold> In a workmen's compensation case where the testimony relied on to establish alleged facts is in conflict with incontestable facts and entirely inconsistent with any theory other than the witness was mistaken, such facts cannot be depended upon as warranting or sustaining an award. <bold>APPEAL AND ERROR: Law questions — review.</bold> Questions of law are 3 subject to review on appeal. <bold>WORKMEN'S COMPENSATION: Contract for hire — basis for</bold> 4 <bold>compensation — informal contract.</bold> A contract for hire, express or implied, is the basis for the employee's right to compensation and the contract may be quite informal. <bold>WORKMEN'S COMPENSATION: Fatal injury — record of an implied</bold> 5 <bold>contract of hire.</bold> Where defendant's record shows decedent worked four weeks prior to his fatal injury and earned $822.16, and his deductions, he had an implied contract of hire from this alone. <bold>WORKMEN'S COMPENSATION: Employment — lessee of truck not</bold> 6 <bold>employer of driver.</bold> Record in a workmen's compensation case supports a finding the lessee of the truck decedent was driving when fatally injured was not his employer. <bold>WORKMEN'S COMPENSATION: Employer-employee relationship —</bold> 7 <bold>factors for determination.</bold> Factors for determining an employer-employee relationship are: Right of selection, or to employ at will; responsibility for payment of wages by the employer; right to discharge or terminate the relationship; right to control the work; and is the party sought to be held as employer the responsible authority in charge of the work or for whose benefit the work is performed. <bold>WORKMEN'S COMPENSATION: Employment — lessor of truck employer</bold> 8 <bold>at time of fatal injury to driver.</bold> Evidence in a workmen's compensation case supports a finding that the truck driver at the time of his fatal injury was an employee of the owner and lessor of the truck involved in the accident, and not the employee of the lessee.

<bold>MOTOR VEHICLES: Intersection collision — motorist's assumption</bold> 1 <bold>of no danger — not contributory negligence as matter of</bold> <bold>law.</bold> Motorist who looks to his right and sees no vehicle approaching at a distance which could be covered at a lawful and prudent speed, or who sees a car approaching from his right at such a distance that lawful speed would not bring it to the intersection in time to cause a collision, is not guilty of contributory negligence as a matter of law if he assumes there is no danger of an accident. <bold>MOTOR VEHICLES: Intersection collision — unlicensed minor</bold> 2 <bold>driver — jury issues on negligence.</bold> In a motor-vehicle-collision action where defendant's car approaching from the right collided with plaintiff's car, driven by an unlicensed minor, at an intersection and there was serious conflict in the evidence, the issues of negligence and contributory negligence were properly submitted to the jury. <bold>MOTOR VEHICLES: Intersection collision — negligence — usually</bold> 3 <bold>for jury.</bold> Intersection collisions raise questions of negligence of defendant and contributory negligence of plaintiff that are rarely for the court to decide. <bold>MOTOR VEHICLES: Intersection collision — failure of minor</bold> 4 <bold>driver to have license.</bold> In an action arising from collision of motor vehicles at an intersection of highways, the failure of plaintiff's minor grandson, who was driving plaintiff's car under his supervision, to have a driver's license or learner's permit had no connection with the collision and did not create a condition of contributory negligence on plaintiff's part as a matter of law.<page_number>Page 1170</page_number> <bold>MOTOR VEHICLES: Unlicensed driver — must be causal connection</bold> 5 <bold>between injury and failure to have license.</bold> Failure of driver of an automobile to have a license to drive does not bar recovery for the other motorist's negligence unless there is a clear causal relation between such failure and the resulting injuries.