Volume 259 — Iowa Reports

<bold>DIVORCE: Property division — misconduct of guilty party as a</bold> 1 <bold>consideration.</bold> Misconduct of the guilty party which brings about a divorce is material in considering what is equitable in the way of division of property. <bold>DIVORCE: Equitable division of property — factors taken into</bold> 2 <bold>consideration.</bold> Equitable property division and allowance of child support in divorce cases are peculiarly dependent on the facts of each case, and among matters to be considered are parties' age, health, present capacity to earn, amount of resources owned by the parties, contributions of each to joint accumulations, the children involved, duration of the marriage, indebtedness, conduct of the guilty party and other facts which assist the court in reaching a just and equitable decision. <bold>DIVORCE: Division of property — award to wife found guilty of</bold> 3 <bold>adultery held equitable and right.</bold> In a decree awarding plaintiff-husband a divorce on the ground of adultery, the provision for property division ordering sale of a farm owned by the parties in joint tenancy, payment of indebtedness of the parties from the proceeds, allocating<page_number>Page 278</page_number> to defendant two thirds of the balance and to plaintiff one third thereof, after deducting an amount equal to 35 percent to be invested in the names of the children, is under the whole record equitable and right.

<bold>PARENT AND CHILD: Obligation of father not abrogated by</bold> 1 <bold>separation or dissension of parents.</bold> A father's obligation to support his child is not abrogated by the fact the separation of the parents may have been caused by the mother, nor should the child be denied his right to his father's support because of dissension between the parents for which he is not to blame. <bold>PARENT AND CHILD: Right of minor to sue father for support.</bold> 2 Right of a minor child to sue his father for support is not impaired by the adoption of the Uniform Support of Dependents Law. Section <cross_reference>252A.8</cross_reference>, Code of 1962. <bold>PARENT AND CHILD: Support of minor — refusal of mother to live</bold> 3 <bold>with father — no implied agreement mother will support</bold> <bold>child.</bold> Fact that a child's mother refuses to live with the father, wrongfully or otherwise, furnishes no basis for implication of an agreement between the parents that the mother will furnish the child's support. <bold>PARENT AND CHILD: Support of minor — father not relieved by</bold> 4 <bold>agreement with mother.</bold> A father cannot be relieved of his duty to support his minor children by agreement of the mother. <bold>PARENT AND CHILD: Support of minor — duty not evaded by</bold> 5 <bold>permitting child to live with mother apart from father.</bold> A father cannot evade his obligation to support by permitting the child to reside apart from him with the mother and making no attempt to gain custody of the child. <bold>PARENT AND CHILD: Support of minor — parents separated — son</bold> 6 <bold>works — no emancipation.</bold> Where separation of a minor from his father's home is due to the parents' marital discord and the minor<page_number>Page 294</page_number> lives with his mother there is no emancipation although the minor works in addition to going to school, has saved money for college, and gives his mother some money to buy groceries. <bold>PARENT AND CHILD: Education of minor — obligation of father —</bold> 7 <bold>factors considered.</bold> Factors governing a proper decision whether a father has the duty to supply, or aid in, the education of his children at post high school level include the financial condition of the parent, the minor's ability for college work, his age, whether the child is self-sustaining, the father's willingness to provide an education and other factors. <bold>PARENT AND CHILD: Support of child after high school level —</bold> 8 <bold>father ordered to contribute.</bold> In an action in behalf of a minor against his father for support where the minor, having finished high school, is planning and saving money to attend medical school, trial court properly ordered defendant to pay $60 each month child support and retained jurisdiction for further consideration of the son's needs.

<bold>CRIMINAL LAW: Appeal from order denying defendant's motion to</bold> 1 <bold>suppress evidence does not lie.</bold> Pretrial order overruling defendant's motion to suppress evidence of statements made to police officers is not a final judgment, hence defendant's appeal from the ruling is premature and does not lie. <bold>CRIMINAL LAW: Final judgment means sentence.</bold> Final judgment in 2 a criminal case means sentence — the sentence is the judgment. Section 793.2, Code of 1962. <bold>CRIMINAL LAW: Final judgment — what constitutes.</bold> Judgment in a 3 criminal case is final for the purpose of appeal when it terminates the litigation on the merits and leaves nothing to be done but to enforce by execution what has been determined. <bold>CRIMINAL LAW: Motion to suppress — admitting the evidence on</bold> 4 <bold>the trial.</bold> Although defendant's preliminary motion to suppress evidence may have been denied, it may be excluded upon the trial; admission of the evidence at the trial may be assigned as error upon appeal. <bold>CRIMINAL LAW: Orders denying motion to suppress evidence —</bold> 5 <bold>interlocutory.</bold> Orders granting or denying motions to suppress evidence are interlocutory and are not appealable.<page_number>Page 382</page_number>

<bold>MOTOR VEHICLES: Statute prohibiting metal inserts in tires —</bold> 1 <bold>unambiguous.</bold> Statute prohibiting use on the highways of automobile tires containing protuberances of any material other than rubber on the periphery of the tire is without ambiguity or doubtful meaning. Section <cross_reference>321.442</cross_reference>, Code of 1962. <bold>MOTOR VEHICLES: Tires with metal inserts prohibited.</bold> Use of 2 automobile tires containing metal inserts, referred to as safety spike winter tires, is prohibited by statute. Section <cross_reference>321.442</cross_reference>, Code of 1962. <bold>STATUTES: Construction — when meaning clear.</bold> It is not the 3 function of the court to change the clear meaning of a statute under the guise of construction. <bold>STATUTES: Construction of clear and unambiguous statute.</bold> When 4 language of a statute is so clear and free from ambiguity and obscurity that its meaning is evident from a mere reading there is no need for construction or search for its meaning beyond the language used. <bold>STATUTES: Interpretation by court.</bold> It is the duty of the court 5 to give to a statute the interpretation its language calls for and not to speculate as to probable legislative intent apart from the wording used. <bold>STATUTES: Construction — legislative intent.</bold> In construing 6 statutes courts search for the legislative intent as shown by what the legislature said, rather than what it should or might have said.<page_number>Page 471</page_number> <bold>STATUTES: Policy, wisdom or advisability not passed upon by</bold> 7 <bold>court.</bold> It is not the province of courts to pass upon the policy, wisdom or advisability of a statute; they are questions for the legislature. <bold>STATUTES: Application.</bold> Statutes in general and comprehensive 8 terms, prospective in operation, apply alike to all persons, subjects and business within their general purview and scope coming into existence subsequent to their passage. <bold>STATUTES: Construction — ambiguity — avoidance of absurd or</bold> 9 <bold>unreasonable consequences.</bold> Avoidance of unreasonable or absurd consequences is one of several rules of construction courts apply only in case of ambiguity. <bold>CONSTITUTIONAL LAW: Statutes open to two constructions —</bold> 10 <bold>constitutionality favored.</bold> Where, and only where, a statute is fairly open to two constructions, one of which will render it constitutional and the other unconstitutional or of doubtful constitutionality, the construction by which it may be upheld will be adopted. <bold>CONSTITUTIONAL LAW: Statutes — courts do not amend to avoid</bold> 11 <bold>unconstitutionality.</bold> In order to save a statute from unconstitutionality or free it from grave doubts thereof, courts will not amend it. <bold>CONSTITUTIONAL LAW: Statute — challenged only by one harmfully</bold> 12 <bold>affected.</bold> One may not urge the unconstitutionality of a statute unless he is harmfully affected by the feature of the statute he alleges conflicts with the constitution — his own rights must be infringed by the alleged unconstitutionality. <bold>MOTOR VEHICLES: Statute prohibiting metal inserts in tires —</bold> 13 <bold>right of one not in interstate commerce to challenge.</bold> Where there is no evidence or claim that plaintiff is engaged in interstate commerce, he is not entitled to attack the constitutionality of the statute which prohibits use on the highways of tires containing metal inserts on the ground it impairs the rights of those who are so engaged. Section <cross_reference>321.442</cross_reference>, Code of 1962. <bold>MOTOR VEHICLES: Statute prohibiting metal inserts in tires —</bold> 14 <bold>no discrimination against interstate commerce.</bold> Statute which prohibits use on the highways of automobile tires containing metal inserts does not discriminate against interstate commerce as it applies to all motorists on the highways, and the legislation may be upheld as reasonably designed to conserve the highway system of the state. Section <cross_reference>321.442</cross_reference>, Code of 1962.

<bold>EVIDENCE: Opinion — receipt — discretion of trial court.</bold> 1 Receipt of opinion evidence and the extent to which it will be received in any case are matters resting largely in the administrative discretion of trial court and this court is reluctant to interfere with such discretion unless it has been manifestly abused to the prejudice of the complaining party. <bold>EVIDENCE: Opinion — nonexpert witness — qualifications.</bold> A 2 nonexpert witness may express his opinion if he has had special opportunities to observe, is qualified to draw proper inferences from available facts, has special experience that may enable him to draw a more nearly accurate inference than the trier of the facts, but the absence of strong qualifications goes to the weight rather than admissibility of the evidence. <bold>EVIDENCE: Opinion — prejudice if any eliminated by admission</bold> 3 <bold>without objection of like testimony of another witness.</bold> Admission without<page_number>Page 558</page_number> objection of opinion testimony of a sheriff that defendant was driver of the automobile involved in a motor-vehicle collision eliminated prejudice, if any, in admission of the same opinion testimony of a highway patrolman. <bold>MOTOR VEHICLES: Presumption as to identity of driver absent</bold> 4 <bold>direct evidence.</bold> Where there is no direct testimony as to the identity of the driver of the automobile involved in a collision, fatal to all three occupants, it may be established by the presumption, rebuttable, that the owner-occupant was the operator. <bold>MOTOR VEHICLES: Identity of driver of car involved in fatal</bold> 5 <bold>collision — evidence to establish.</bold> In a motor-vehicle-collision action where all three occupants of the automobile owned by defendant's decedent were fatally injured, the evidence that the owner's body was found in the front seat in a location normally occupied by the driver serves to substantiate the inference defendant-owner was driving the vehicle. <bold>MOTOR VEHICLES: Guest statute — protection of operator.</bold> Guest 6 statute was enacted for the protection of the well-meaning good samaritan owner or operator of the automobile. <bold>MOTOR VEHICLES: Guest — inference as to status.</bold> There is an 7 inference an occupant of an automobile operated by another is a guest, placing upon the one contending otherwise the burden of so proving. <bold>MOTOR VEHICLES: Guest status — what constitutes.</bold> One who rides 8 in an automobile for the definite and tangible benefit of the owner or operator or for the mutual, definite and tangible benefit of the owner or operator on the one hand and of himself on the other is not a guest within the meaning of section <cross_reference>321.494</cross_reference>, Code of 1962. <bold>MOTOR VEHICLES: No guest status under a car pool arrangement —</bold> 9 <bold>each passenger furnishing the car every third day.</bold> A car pool arrangement between three employees of the same plant whereby each would drive on every third day, paying all expenses in the operation of his own automobile, providing transportation for the other two sustained trial court's finding the passengers in defendant's automobile at the time they were killed in a collision were not guests, being in fact nongratuitous passengers. <bold>MOTOR VEHICLES: Guest — liability of host-driver.</bold> A 10 host-driver is not liable for injuries to or death of a guest-occupant, absent proof of recklessness or intoxication of the operator. <bold>MOTOR VEHICLES: Collision — result of illegal passing — not</bold> 11 <bold>speed.</bold> In an action for death of passengers in a motor-vehicle collision the evidence supports a finding the accident was not the proximate result of speed but was causatively due to the fact defendant-driver negligently<page_number>Page 559</page_number> pulled onto the left lane of the highway in a no-passing zone and struck the oncoming truck near the crest of a hill. <bold>NEGLIGENCE: Contributory — bar to recovery.</bold> In the absence of 12 legal excuse a plaintiff's contributory negligence ordinarily bars recovery against a defendant whose negligence would otherwise make him liable to plaintiff. <bold>NEGLIGENCE: Contributory — proximate cause not a factor.</bold> To be 13 contributory the negligence need not be such as to meet the proximate cause test. <bold>NEGLIGENCE: Contributory.</bold> All negligence of a claimant is not 14 necessarily contributory, rather, his negligence which will bar recovery for negligence of another must in fact be contributory. <bold>NEGLIGENCE: Assumption of risk — application of doctrine.</bold> Mere 15 lack of care, without more, does not amount to assumption of risk, for the doctrine involves a choice between a course of conduct known to be dangerous and one that is not — a voluntary assumption of the danger by plaintiff with full knowledge thereof. <bold>NEGLIGENCE: Assumption of risk — contributory negligence —</bold> 16 <bold>comparison.</bold> Assumption of risk involves more or less deliberation, whereas contributory negligence implies lack of care and hence absence of deliberate choice. <bold>NEGLIGENCE: Assumption of risk and contributory negligence.</bold> As 17 sumption of risk defeats recovery because it is a previous abandonment of a right to complain if an accident occurs, while the essence of contributory negligence is carelessness, a matter of conduct, a lack of reasonable care leading more immediately to a specific accident. <bold>NEGLIGENCE: No eyewitness rule — defined.</bold> The "no 18 eyewitness" rule is that where there is no obtainable direct evidence of what a decedent did or failed to do immediately prior to the time of his injury the jury may infer he was in the exercise of ordinary care for his own safety. <bold>NEGLIGENCE: Contributory — circumstantial evidence may</bold> 19 <bold>establish.</bold> Proof of freedom from contributory negligence may be established by circumstantial as well as direct evidence. <bold>MOTOR VEHICLES: Collision fatal to all occupants — no</bold> 20 <bold>eyewitness rule applicable.</bold> The no eyewitness rule was applicable where the causative events immediately prior to the collision of the automobile occupied by plaintiffs' decedents with a truck occurred so fast as to make impossible any act or omission on the part of decedents which could have contributed to the fatal collision and the only known observers had but a fleeting glimpse of the automobile as it passed them but<page_number>Page 560</page_number> did not see who was in the car, the position of the occupants or what they were doing except that the car crossed the yellow line and then collided with the truck, and the record satisfactorily established the decedents' freedom from contributory negligence. <bold>NEGLIGENCE: Assumption of risk.</bold> Assumption of risk is an 21 affirmative defense. <bold>MOTOR VEHICLES: Collision — fatal — assumption of risk not</bold> 22 <bold>established.</bold> In an action for deaths of plaintiffs' decedents who were occupants of an automobile which collided with an oncoming truck while defendant was attempting to pass another automobile in a no-passing zone at the crest of a hill, the evidence failed to establish the defense of assumption of risk. <bold>DEATH: Minor — measure of recovery.</bold> Measure of recovery for 23 death of a minor is the present worth of the estate he would reasonably be expected to save and accumulate as a result of his efforts after reaching majority if he lived out his natural life, however, in computing present worth his life expectancy is to be used. <bold>DEATH: Interest on cost of burial.</bold> Interest on cost of burial 24 is allowable for such time as it was prematurely incurred, not to exceed the cost. <bold>DEATH: Verdict of $11,000 — 17-year-old youth — amount not</bold> 25 <bold>excessive.</bold> Verdict awarding $11,000 for death of a 17-year-old youth who had accumulated little or no estate, had not finished high school, but was physically fit, industrious, thrifty, dependable, of normal intelligence, well liked by his associates, interested in mechanics, enjoyed hunting and was gainfully employed was not excessive.