SACKETT, Judge.
In this case we address the issue of a truck owner’s liability for a vehicular accident. Plaintiff-appellee Margaret De Bolt’s car collided with a truck owned by Defendant-appellant, Henry Le Roy Dag-gett. Daggett’s truck was placed in motion by Daggett’s 15-year-old nephew Albert Woods.
De Bolt sued Daggett, as the owner, and Woods as the driver. Daggett claimed Woods was operating the truck without his consent. Daggett had left Woods in the truck while Daggett entered a business [104]*104establishment. According to Woods’ testimony he started the truck to operate the heater. The truck went into the street and hit De Bolt’s car. The case was tried to a jury. Special verdicts were returned finding Woods was negligent and Daggett had consented to Woods’ operation of the truck. Judgment was rendered against Daggett and Woods in the amount of $36,170.36.
Daggett appeals alleging a series of errors.
I.
We first address the issue of sufficient evidence to support a finding Woods had Daggett’s permission to drive the truck at the time of the accident. Daggett’s responsibility to De Bolt if any is premised on Iowa Code section 321.493, which provides in relevant part:
Liability for damages. In all cases where damage is done by any motor vehicle by reason of negligence of the driver, and driven with the consent of the owner, the owner of the motor vehicle shall be liable for such damage.
Daggett contends there is no evidence the truck was driven and the movement of the truck was only the result of Woods’ operating the heater. The term “driven” is not statutorily defined. However, Iowa Code section 321.1(44) defines “driver” as “every person who drives or is in actual physical control of a vehicle.”
The purpose of [Iowa Code section 321.-493] is to protect an innocent third party from the careless operation of a motor vehicle and to make the owner responsible for the negligence of one to whom the owner entrusted its operation.
Briner v. Hyslop, 337 N.W.2d 858, 870 (Iowa 1983).
The fact the movement of the truck may have occurred while operating the heater should not absolve Daggett of responsibility. By prescribing the time, place, or purpose for which the vehicle can be used, the owner can escape liability if the driver deviates materially from the scope of the consent. Briner, 337 N.W.2d at 870 (citations omitted). However, the owner generally cannot avoid such liability for a mere deviation from instruction on the manner in which the vehicle is used. Id. For example, the owner cannot escape liability by stating that if the driver exceeds the speed limit he is then driving without permission. Any other conclusion would allow the owner to escape liability in nearly every case by showing that some authority was violated. Id. Additionally, the evidence is Woods pled guilty to a series of moving violations following the accident including driving on a sidewalk, reckless driving and failure to have control. We reject Dag-gett’s contention there is no evidence the car was driven by Woods.
II.
Daggett argues there is no evidence he consented to Woods’ operation of the vehicle. It is admitted Daggett is the owner of the vehicle. This is prima facie proof or creates an inference or presumption the truck was driven with his consent. The issue is then one of fact for the jury unless the evidence conclusively rebuts the inference of consent. Tuttle v. Longnecker, 258 Iowa 393, 399, 138 N.W.2d 851, 855 (1965); McKirchy v. Ness, 256 Iowa 744, 747, 128 N.W.2d 910, 912 (1964).
Daggett contends the evidence clearly rebuts the inference of consent. There is not much direct evidence in the record on consent. In fact, under the circumstances in this case, the plaintiff could not be expected to produce contradictory evidence of disinterested parties on the subject. The testimony of the defendants, however, against consent is not conclusive. It can be rebutted by circumstances, taken together with the reasonable or unreasonable character of their testimony. Wolfson v. Jewett Lumber Co., 210 Iowa 244, 255, 227 N.W. 608, 612 (1929).
The issue is whether Daggett’s evidence was sufficient, aided by the remainder of facts and circumstances demonstrated at trial, as a matter of law to overcome the presumption or inference of consent. See Anderson v. Lehner, 243 Iowa 851, 855-56, 52 N.W.2d 513, 515-16 (1952). The weak inference of consent which accompanies the [105]*105admission of ownership is to compel the owner to identify those operating the vehicle and explain by what authority, if not his own, it was being driven. Hunter v. Irwin, 220 Iowa 693, 698, 263 N.W. 34, 37 (1935). It does not alter the burden of proof. McKirchy, 256 Iowa at 747, 128 N.W.2d at 912. Nor does the inference require “every case shall go to the jury, where the undisputed and uncontroverted evidence establishes the facts so conclusively that the inference is overcome.” Curry v. Bickley, 196 Iowa 827, 832, 195 N.W. 617, 619 (1923).
Woods stated he did not feel he had Daggett’s permission to operate the truck. Woods is Daggett’s fifteen-year-old nephew who was living with Daggett’s parents at the time of the collision. Woods did not have a driver’s license. Woods stated he had never driven the truck or any vehicle belonging to Daggett prior to the accident. Daggett contended when he left Woods in the truck he took the key from the ignition. Daggett contended he thought it was the only key. Daggett testified Woods took a spare key from the glove compartment. Daggett said he was not aware of the spare key in the truck’s glove compartment. None of these facts were contradicted by direct testimony.
The defense of nonconsent is one which can be easily made, with little probability it can be met with direct refutation. It is not necessary plaintiff adduce direct testimony. McKirchy, 256 Iowa at 747, 128 N.W.2d at 912. The owners’ testimony, though positive and direct, is not necessarily conclusive. It may be weakened or rebutted by facts and circumstances, or by its own inherent weakness or unreasonable character. The weight of the testimony and credibility of the witnesses depend upon facts and conditions as shown by the record in each case. This particular issue, as it comes before the courts, is one which the average jury is peculiarly well fitted to pass upon and arrive at a correct conclusion. Id.
Consent to operate can be implied. Sexton v. Lauman, 244 Iowa 570, 579, 57 N.W.2d 200, 205 (1953). 60A C.J.S. Motor Vehicles § 442(6), at 1063 (1969) provides:
The owner may give another implied permission to use his motor vehicle without expressing such permission in words, as by leaving the ignition key in the lock. It has been held that the phrase “legally using or operating” refers merely to the legality of consent and not to the matter of absence of an operator’s license, so that the owner may be held liable for operation of the vehicle by one lacking a driver’s license_
Free access — add to your briefcase to read the full text and ask questions with AI
SACKETT, Judge.
In this case we address the issue of a truck owner’s liability for a vehicular accident. Plaintiff-appellee Margaret De Bolt’s car collided with a truck owned by Defendant-appellant, Henry Le Roy Dag-gett. Daggett’s truck was placed in motion by Daggett’s 15-year-old nephew Albert Woods.
De Bolt sued Daggett, as the owner, and Woods as the driver. Daggett claimed Woods was operating the truck without his consent. Daggett had left Woods in the truck while Daggett entered a business [104]*104establishment. According to Woods’ testimony he started the truck to operate the heater. The truck went into the street and hit De Bolt’s car. The case was tried to a jury. Special verdicts were returned finding Woods was negligent and Daggett had consented to Woods’ operation of the truck. Judgment was rendered against Daggett and Woods in the amount of $36,170.36.
Daggett appeals alleging a series of errors.
I.
We first address the issue of sufficient evidence to support a finding Woods had Daggett’s permission to drive the truck at the time of the accident. Daggett’s responsibility to De Bolt if any is premised on Iowa Code section 321.493, which provides in relevant part:
Liability for damages. In all cases where damage is done by any motor vehicle by reason of negligence of the driver, and driven with the consent of the owner, the owner of the motor vehicle shall be liable for such damage.
Daggett contends there is no evidence the truck was driven and the movement of the truck was only the result of Woods’ operating the heater. The term “driven” is not statutorily defined. However, Iowa Code section 321.1(44) defines “driver” as “every person who drives or is in actual physical control of a vehicle.”
The purpose of [Iowa Code section 321.-493] is to protect an innocent third party from the careless operation of a motor vehicle and to make the owner responsible for the negligence of one to whom the owner entrusted its operation.
Briner v. Hyslop, 337 N.W.2d 858, 870 (Iowa 1983).
The fact the movement of the truck may have occurred while operating the heater should not absolve Daggett of responsibility. By prescribing the time, place, or purpose for which the vehicle can be used, the owner can escape liability if the driver deviates materially from the scope of the consent. Briner, 337 N.W.2d at 870 (citations omitted). However, the owner generally cannot avoid such liability for a mere deviation from instruction on the manner in which the vehicle is used. Id. For example, the owner cannot escape liability by stating that if the driver exceeds the speed limit he is then driving without permission. Any other conclusion would allow the owner to escape liability in nearly every case by showing that some authority was violated. Id. Additionally, the evidence is Woods pled guilty to a series of moving violations following the accident including driving on a sidewalk, reckless driving and failure to have control. We reject Dag-gett’s contention there is no evidence the car was driven by Woods.
II.
Daggett argues there is no evidence he consented to Woods’ operation of the vehicle. It is admitted Daggett is the owner of the vehicle. This is prima facie proof or creates an inference or presumption the truck was driven with his consent. The issue is then one of fact for the jury unless the evidence conclusively rebuts the inference of consent. Tuttle v. Longnecker, 258 Iowa 393, 399, 138 N.W.2d 851, 855 (1965); McKirchy v. Ness, 256 Iowa 744, 747, 128 N.W.2d 910, 912 (1964).
Daggett contends the evidence clearly rebuts the inference of consent. There is not much direct evidence in the record on consent. In fact, under the circumstances in this case, the plaintiff could not be expected to produce contradictory evidence of disinterested parties on the subject. The testimony of the defendants, however, against consent is not conclusive. It can be rebutted by circumstances, taken together with the reasonable or unreasonable character of their testimony. Wolfson v. Jewett Lumber Co., 210 Iowa 244, 255, 227 N.W. 608, 612 (1929).
The issue is whether Daggett’s evidence was sufficient, aided by the remainder of facts and circumstances demonstrated at trial, as a matter of law to overcome the presumption or inference of consent. See Anderson v. Lehner, 243 Iowa 851, 855-56, 52 N.W.2d 513, 515-16 (1952). The weak inference of consent which accompanies the [105]*105admission of ownership is to compel the owner to identify those operating the vehicle and explain by what authority, if not his own, it was being driven. Hunter v. Irwin, 220 Iowa 693, 698, 263 N.W. 34, 37 (1935). It does not alter the burden of proof. McKirchy, 256 Iowa at 747, 128 N.W.2d at 912. Nor does the inference require “every case shall go to the jury, where the undisputed and uncontroverted evidence establishes the facts so conclusively that the inference is overcome.” Curry v. Bickley, 196 Iowa 827, 832, 195 N.W. 617, 619 (1923).
Woods stated he did not feel he had Daggett’s permission to operate the truck. Woods is Daggett’s fifteen-year-old nephew who was living with Daggett’s parents at the time of the collision. Woods did not have a driver’s license. Woods stated he had never driven the truck or any vehicle belonging to Daggett prior to the accident. Daggett contended when he left Woods in the truck he took the key from the ignition. Daggett contended he thought it was the only key. Daggett testified Woods took a spare key from the glove compartment. Daggett said he was not aware of the spare key in the truck’s glove compartment. None of these facts were contradicted by direct testimony.
The defense of nonconsent is one which can be easily made, with little probability it can be met with direct refutation. It is not necessary plaintiff adduce direct testimony. McKirchy, 256 Iowa at 747, 128 N.W.2d at 912. The owners’ testimony, though positive and direct, is not necessarily conclusive. It may be weakened or rebutted by facts and circumstances, or by its own inherent weakness or unreasonable character. The weight of the testimony and credibility of the witnesses depend upon facts and conditions as shown by the record in each case. This particular issue, as it comes before the courts, is one which the average jury is peculiarly well fitted to pass upon and arrive at a correct conclusion. Id.
Consent to operate can be implied. Sexton v. Lauman, 244 Iowa 570, 579, 57 N.W.2d 200, 205 (1953). 60A C.J.S. Motor Vehicles § 442(6), at 1063 (1969) provides:
The owner may give another implied permission to use his motor vehicle without expressing such permission in words, as by leaving the ignition key in the lock. It has been held that the phrase “legally using or operating” refers merely to the legality of consent and not to the matter of absence of an operator’s license, so that the owner may be held liable for operation of the vehicle by one lacking a driver’s license_
(Emphasis added.) The test as to whether or not leaving the ignition key in the lock while the car is in charge of another lies in whether such circumstances would suggest to a reasonably prudent person that the automobile would be moved. Id. at 1063 n. 15.
We look at the direct evidence and inferences from facts and circumstances which rebut Daggett’s evidence. See Hunter, 220 Iowa at 699, 263 N.W. at 37.
1. Woods was not a stranger to the vehicle. He was Daggett's nephew and was inside the vehicle with Dag-gett’s permission and consent.
2. Daggett left Woods in sole possession and control of the vehicle while Daggett went in the business establishment.
3. There were keys left in the vehicle.
4. The accident happened within the area of the business establishment.
5. Woods in his statements does not corroborate Daggett’s testimony the key used was in the glove compartment.
6. Both Woods and Daggett gave contradictory testimony.
We look at the reasonable or unreasonable character of defendant’s testimony. Wolfson, 210 Iowa at 255, 227 N.W. at 612. The Minnesota court in interpreting a similar statute expressed the view perjury and collusion would be encouraged were an owner permitted to evade liability on the basis of asserted secret restrictions on the bailee’s authorized use. Hutchings v. Bourdages, 189 N.W.2d 706, 709 (Minn.1971).
[106]*106We find the jury verdict to be supported by substantial evidence. We affirm the trial court on this issue.
III.
Daggett contends the trial court erred in admitting the fact Woods was given citations for numerous moving violations connected with the accident. Woods pled guilty to the citations. Because Woods pled guilty to the citations they are an admission against interest and are admissible. Martin v. Cafer, 258 Iowa 176, 185, 138 N.W.2d 71, 77 (1965). Not only are they relevant to the issue of Woods’ negligence, but the fact Woods pled guilty to a series of moving violations contradicts his testimony that all he did was start the truck to use the heater. We find no error on this ground.
IV.
Daggett next complains the court erred in admitting evidence of his prior felony convictions.
Daggett pled guilty to false use of a financial statement, theft in the second degree and larceny. He sought in a motion in limine to exclude reference to these charges and claimed they were not admissible under Iowa R.Evid. 609. His motion was overruled. At trial without objection plaintiff asked Daggett about the charges and he admitted them.
Determination of whether the witness’s prior felony conviction involves dishonesty or false statement and whether the probative value of admitting the evidence outweighs its prejudicial effect is within the sound discretion of the trial court. See Iowa R.Evid. 609(a); State v. Latham, 366 N.W.2d 181, 184 (Iowa 1985). We find no abuse of discretion.
V.
Daggett contends the trial court abused its discretion in allowing De Bolt’s doctor to testify as to the permanency of her injuries because there was no showing the doctor who testified on March 17, 1986, had seen De Bolt since July 1, 1983. He also contends the trial court erred in allowing the doctor to testify regarding his hospitalization of her because he did not have the hospital records. Where an objection goes to sufficiency of data upon which an expert bases his opinion as distinguished from facts which qualified him or her to state an opinion at all, the objection goes to weight but not admissibility of the expert’s testimony. Beeck v. Aquaslide ‘N’ Dive Corp., 350 N.W.2d 149, 165-66 (Iowa 1984). We find no abuse of discretion.
VI.
Daggett claims the award of $36,-170.36 was excessive. De Bolt was rendered unconscious in the accident, she fractured C-5 vertebra, she was hospitalized, she wore a neck brace for two months, she lost approximately two months’ wages, she had medical bills of about $2,200, she continues to have problems and there is evidence of permanency. A verdict will not be set aside as excessive unless it is “(1) flagrantly excessive or inadequate; or (2) so out of reason as to shock the conscience or sense of justice; or (3) raises a presumption that it is the result of passion, prejudice, or other ulterior motive; or (4) is lacking in evidential support.” Schnebly v. Baker, 217 N.W.2d 708, 724 (Iowa 1974) (quoting Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 659 (Iowa 1969)). It is not for us to invade the province of the jury. Schmitt, 170 N.W.2d at 659. We find no basis to set aside the verdict.
VII.
Daggett contends the trial court erred in taxing certain costs to him. Dag-gett does not point out where the issue was raised in the trial court. We do not consider issues raised for the first time on appeal. Federal Land Bank v. Heeren, 398 N.W.2d 839, 841 (Iowa 1987).
AFFIRMED.
All Judges concur except SNELL and DONIELSON, JJ., who dissent.