*1 BRINER, Norma J. Administrator Briner, David L.

Estate of

Deceased, Appellant, McLane Live

Dennis Lee HYSLOP Inc., Appellees. Transport,

stock

No. 68228. Court of Iowa.

Supreme

Aug. *2 Gallagher, stopped Jr. R. Dodge Edward J. and David Fort allow Scowden Gallaher, Gallagher, Langlas Sheridan of & call McLane them to McLane. instructed Waterloo, appellant. Iowa, load go pick up Rowley, early of November 9. morning cattle John B. Lu- T. Nolan and Marc Moen of Dodge in Fort con- stopped Hyslop While Moen, cas, Nolan, City, Bohanan & *3 double scotches. He then sumed several appellee Hyslop. driving got began his truck and back P.C., Ball, Holm, Max E. Kirk of Kirk & Unfortunately, asleep he fell Rowley. Walsh, Clark, E. Butler & and James Jr. over the driving while and his truck drifted Walsh, Waterloo, for McLane Live- appellee oncoming line collided with center and Inc. Transport, stock Briner automobile. Hyslop collision As a result this involun- pleaded guilty with and charged SCHULTZ, Justice. his a tary manslaughter operating based on This arises out of an automobile- appeal while under the influence of motor vehicle truck accident the life of the which claimed driving, reckless failure to drugs, alcohol or automobile, L. driver of the David Briner. control, yield failure to one-half The administrator of Briner’s estate book, keep log highway, failure to and brought wrongful against death action operating a commercial vehicle for more Hyslop both Dennis and McLane Livestock hours than allowed law. Transport, (McLane), Inc. driver Hyslop Before of the trial commencement truck, respectively. The the owner and removed this negligence admitted his jury case was tried to a which returned McLane jury issue from the deliberation. compensatory punitive verdicts for Hyslop’s negligence, also admitted but damages against The tri- both defendants. contending sought liability by to avoid that court judgment al entered in accordance driving was not with McLane’s con- Hyslop verdict, jury except with the it entered alcohol. consumption sent of his because judgment notwithstanding for the verdict punitive damage McLane on the award. joint After the trial the returned damages for for compensatory verdict appealed Plaintiff has from the trial $116,846.08 both defendants and against grant judgment notwithstanding court’s for separate verdicts verdict; on cross-appealed McLane has $100,000 against Hyslop for against compensatory damages; Hys- the award of $150,000. The court subse- McLane for has from lop cross-appealed the award granted judgment notwithstand- quently against damages him. Of ing for McLane on the the verdict on many appeal issues raised this we find judgment award and entered damage the most troublesome concerns the test that the other in conformance with plaintiff cor- applied should be to determine when a verdicts. porate employer may pu- be held liable for employee. for the acts of an nitive damage award I. Punitive set forth Less troublesome issues will be sustaining McLane’s motion McLane. opinion. and discussed later notwithstanding the verdict judgment give a reason 7,1979, court failed to Hyslop November left Colora- trial On comply with ruling. with This failure do and drove McLane truck loaded of Civil Center, contained in Iowa Rule Another of direction cattle to Iowa. Sioux involving Scowden, sepa- that motions notified Procedure 118 employees, McLane’s Leo by sepa- disposed rate “shall be approximately p.m. grounds 2:00 on No- McLane at gen- sustained rulings on each and not Hyslop had arrived in Sioux rate vember 8 about both uncertainty creates erally” told that he Center. McLane Scowden the issues that reasoning and trial court’s begin driving to Waterloo. Hyslop were appeal. should be considered evening Hyslop Later Scowden Restaurant, Inc., We have admonished trial to com- v. Denny’s courts 271 Or. rule ply with Greenwell v. Meredith P.2d 790 general These authorities Corp., 1971), (Iowa ly term their analysis ap the liberal given for requiring compliance, our reasons proach or the course employment rule. noncompliance may and indicated that Kircher, J. Ghiardi and J. Punitive Dam grounds for a Country reversal. Oakleaf ages Law and Practice 5.06 Club, Wilson, Inc. 743 other group corpo of authorities finds the (Iowa 1977). We do not believe that a rate employer liable for for noncompliance reversal is warranted corporate employer wrong when the here, shall confine our review to the authorized, to, fully contributed or ratified grounds two urged by McLane in its motion outrageous plain conduct which caused verdict, for a directed as the motion for See, injury. e.g., Mercury tiff’s Motors Ex judgment notwithstanding must stand or press, Smith, (Fla. Inc. v. So.2d *4 grounds urged fall on therein. Watson v. 1981). This the rule is termed complicity Lewis, 459, (Iowa 1978). Morris, Damage rule. Punitive in Personal grounds Cases, 216, raised in both are Injury (1960). motions 21 Ohio St.L.J. (1) the trial adopting court erred in as It is expressed by (Second) the Restatement the law of the case rule permits the which of Agency nearly 217C and the identical § the assessment damages of against 909, of (Second) Restatement Torts which § corporation by employee for acts done an states: in the course employment, of his rather Punitive properly can be award- than the rule set forth in the Restatement ed principal a master or other (Second) of Torts 909 which permits such if, because of an by agent an act but only circumstances; damages under more limited if: there was insufficient evidence un- (a) principal the doing authorized the der either of present these rules to a suffi- act, and the manner of the or cient factual issue to allow the of issue (b) agent princi- the unfit was and the punitive damages against go McLane to pal him, was employing reckless in or the jury. issues, We shall address both but (c) the agent employed was in a mana- begin we with an proper examination of the gerial capacity acting and was the punitive damages. rule for of allowance scope of or employment, Proper A. rule. It well is established in (d) the principal managerial or the Iowa of supe under the doctrine respondeat or agent principal ap- ratified corporate rior that a employer may be liable proved the act. for compensatory damages from resulting negligent of employees (Second) (1979). acts committed Restatement of Torts scope within the employment their even problem previ- We have addressed this though employer without fault. Initially, ous occasions. we a position took Frost v. College Osteop Des Moines Still consistent with the rule Restatement athy 294, 304-06, Surgery, 248 Iowa 79 required corporate complicity. Dunshee v. 306, certain, N.W.2d It is less Co., Oil 165 Iowa 146 N.W. Standard however, under what circumstances an em 830 (1914). We the view that expressed ployer is punitive damages liable for for “the principal cannot be held liable in exem- willful acts of employees committed within plary damages for the acts of the wanton scope of employment. agent, express- participated, unless it either ly Those authorities impliedly, by authorizing that have considered or or conduct or act, the issue are groups. divided into two One approving the whether before or after group holds corporate liable employer it was at at committed.” Id. N.W. punitive damages for whenever the employ- approved This rule was in White v. ee’s actions the scope Co., within of employment International Textbook 173 Iowa See, make the employee e.g., (1915), liable. Stroud 155 N.W. and Ashland lan- 596, 602, corporation) quoted above Co., 247 Iowa Lapiner Motor coupled with an examination guage, N.W.2d authorities, clearly indicates the cited appeared to the issue Our next reference pre- court toward movement Construction in Claude v. Weaver corpo- now hold that a vailing rule. We (1968). In 1225, 158 exemplary assessed dam- may ration corporation president case the course, exemplary to recover ages. Of operations and actively involved in business corporation wrongful for from a activity. authorized the controverted had must employees liability employees, for acts of its Although corporate the issue of of, or disputed, was not within course exemplary damages acting have been with, court stated: or em- their duties in connection in the case at bar ployment. Error asserted broad, corporate entity, liability we stated that clearly at 858-59. While Id. damages, urged is neither for corporation may be liable a result nor discussed defendant. As Northrup not faced in damages, we were or upon are not here called consider determining under question with the not do so. Stat resolve that issue do corporation would what circumstances otherwise, question ed for the acts of liable exemplary damages corporation Consequently, that issue was employee. However, this appeal. is not involved in Northrup in either Claude not examined *5 Balti regard foregoing with to the see Northrup. mentioned in Church, Baptist v. more & P.R. Co. Fifth Nevertheless, despite McLane’s claims 719, 726-727, 317, 27 108 2 U.S. S.Ct. adopt not Northrup our in did holding that 739; (5 Binzel L.Ed. Kelite Products v. rule, deci- subsequent liberal our 131, 144; Prom, the more Cir.), F.2d v. 224 Amos 127, 137; brought against a munici- Inc., v. sion in an action Toole Rich F.Supp. 115 ardson-Merrell, Inc., 689, In otherwise. Cal.App.2d pal corporation 251 indicates 415; Moines, 398, Algozino v. Des 262 N.W.2d Cal.Rptr. Young City 60 v. 414 - Co., Ill.App 612, 1978), Welch Fruit Products 345 a suit for unlawful (Iowa 622 135, 102 555, 560; 25 Dam N.E.2d C.J.S. arrest, damages we allowed 1153; 125(4), 19 ages page C.J.S. Cor § city police for the acts of against a 948; 1263, Am.Jur., page porations 39 § Municipal Tort Claims officers under the 313; Nuisances, 32, page 13 Am. Section chapter 613A) and stated (Iowa Code Act 1130, Jur., Corporations, page section recovery by applica- “is determinable that 1056; Prosser, Torts, Law Third in legal as cases principles of the same tion Series, Ed., page 12. Hornbook We have not corporations.” against private although that we at 158 N.W.2d at 145. often on issue spoken Id. municipality puni- liable for recently held in v. Northrup We returned to issue damages employees; for acts of its tive Homes, Inc., (Iowa Miles N.W.2d 850 however, operative miscon- in that case the 1973). parties sharply disagree about city official with instigated duct was Northrup the intention of the court. Plain- knowledge city of the concurrence and argues Northrup discarded tiff in we Young, 332 N.W.2d Dickerson council. rule and “complicity” adopted (Iowa As noted in 1983). we 104-05 employment” rule. In that case “course however, Dickerson, legislature has argued corporation pu- the defendant to be im- recently that cities are provided nitive could not be assessed punitive damages. 332 corporation. quoted We suits for against mune from 105; 613A.4(5) paragraph from and then above Claude see Iowa Code N.W.2d at § Likewise, added: 25A.4 Iowa Code section damages in state tort claims. bars (affirmance of an The result Claude Compare 25A.21 damages against § Code exemplary award of Northrup Since un- (Second) was decided we have state); as law of that § special Inc., der circumstances refused to allow Phelps, Remeikis v. Boss & 419 A.2d punitive damages against (District assessed (D.C.1980) applies Columbia In corporations. Rowen v. Le Mars Mutual complicity rule); Mattyasovszky v. West Co., (Iowa Insurance 282 N.W.2d Towns Bus 61 Ill.2d 330 N.E.2d 509 1979), we not permit punitive damages did (Illinois Court Supreme ap indicated to be assessed a mutual insurance proval of complicity rule). company policyholders where innocent who light In of the above we appro- deem it had traditionally part manage- taken no priate to position. review our We will de- ment would have had to bear the loss. termine clearly whether state what we Blessum v. Super- Howard Board of County may Northrup, intimated in or wheth- visors, (Iowa 1980), er to adopt a rule that is consistent with the approved setting the trial court’s action pressure Restatement. The of stare decisis aside an award of punitive damages against does prevent reconsidering not us from our county board of supervisors to avoid a judicial pronouncements correcting recovery double where two members abandoning them when we believe the bet- of the board supervisors were held liable ter rule is Young, otherwise. damages and the third member at especially where, 615. This is true did not in the participate wrongful conduct. here, the fully issue is before us for the first We stated do not believe same “[we] presented time and we are with excellent conduct of participating two board [the arguments. briefs and should cause members] correctly points Plaintiff out that some the Board as an institution in suggest authorities course of em addition to Dickerson, themselves.” Cf. rule, ployment see, rule is the prevailing (punitive N.W.2d at dupli- not Dobbs, e.g., 3.9, D. Law Remedies at § cative when both mayor-councilman (1973); Fletcher, 10 W. Cyclopedia of liable). the city held Corporations (rev. 1978); W. Pros In none of these cases have we been ser, (4th Law of Torts at 12 n. 93 ed. *6 upon called as we are here to di- address 1971); of American Mechanical En Society rectly question a corporation’s of liabili- gineers Hydrolevel 556, Corp., v. 456 U.S. ty punitive damages for wrongful 14, 1935, 14, 575 n. 102 1947 n. 72 S.Ct. of an employee. Despite acts plaintiff’s 330, L.Ed.2d 345 n. 14 com (1982); other argument to the we contrary, did not do so suggest mentators that this is not necessari in In Northrup. Northrup commented See, Ellis, ly e.g., Damages true. Punitive on the cases cited in Claude and stated that Assessment, in Iowa Law: A Critical 66 these “clearly authorities indicate the move- 1005, 1041 L.Rev. n. 246 Our ment of the court prevailing toward the research of employ shows that the course rule.” 204 N.W.2d at Northrup does ment rule not the rule in majority not necessarily indicate the course of em- fact, state courts. more states have ployment rule is prevailing rule. The adopted the Restatement or a rule rule reference to the “prevailing rule” was with more restrictive than the Restatement rule regard to whether corporation may than have employ endorsed the course of liable damages. Moreover, ment rule. result we reached in Claude also have would fifty Of the been reached states and the District of if the court had applied Columbia, Indeed, complicity twenty-two rule. states follow either most of the deci- rule; sions in the Restatement cited Claude either are line or more restrictive with rule complicity twenty employ- or have been states follow the course overruled rule; See, replaced by ment four not complicity rule. states do allow Johnson, e.g., Agarwal 932, damages; v. 25 160 Cal.3d four states have not addressed issue; Cal.Rptr. 141, (1979) (California ques- 603 P.2d 58 and the rule Iowa is in Supreme recognized Court Restatement tion.

864 Re which follow either follow the The states twenty states which are: Standard are: restrictive rule employment course of rule or more statement 598, Gunn, Kentucky v. 932, 234 Johnson, Oil Co. of Ala. 25 160 Cal. Agarwal v. Cal.3d sold (1937) (oil company’s agent 176 So. 332 (1979) 141, (recognized 58 603 P.2d Rptr. v. Corp. Coach Western oil); adulterated Fur Holland state); 909 lawas 336, 452 117 Vaughn, 9 Ariz.App. P.2d 347, Robson, 402 P.2d nace Co. v. 157 Colo. v. employment); Miller (1969) (scope of (Second) of (1965) Restatement (citing 628 246, 293 Blanton, 213 Ark. 210 S.W.2d Society v. 217C); Maisenbacker Agency § accident); driver in auto (1948) (intoxicated 369, Concordia, (1899); A. 67 42 71 Conn. Co., (Marv.) 15 Del. Ford v. Charles Warner Inc., Phelps, A.2d Remeikis v. Boss & 419 says 88, (1893) (one commentator 37 A. 39 rule); Mercury (D.C.1980) (complicity 986 Greyhound Atlantic on authority point); no Smith, v. 545 Express, Motors Inc. 393 So.2d Austin, 289, Corp. v. Ga.App. 72 33 S.E.2d (abandoned employ course (Fla.1981) Hibschman carrier); (1945) (common 718 case); to our similar ment rule facts Batchelor, 310, Pontiac, v. 362 Inc. 266 Ind. Corp., F.Supp. 110 Jenkins v. Whittaker 551 (1977) (all corporate acts N.E.2d 845 law); Hawaii (D.Haw.1982) (relying Wheeler agent corporation); attributable v. Automobile Insurance Openshaw Oregon v. Manufacturing Boyce, Wilson Co. 36 & Co., 335, 487 (1971) (citing P.2d 929 94 Idaho (more 350, (1887); recent Kan. 13 P. 609 v. Patent Pendowski Scaf Restatement); issue); Memphis Cin & cloud the decisions Co., 484, folding 44 Ill.Dec. Ill.App.3d 89 9, 29 v. Nagel, cinnati Packet Co. Ky. 97 910, 544, (Ill.App.1980); 913 411 N.E.2d carrier); Goddard (1895) (common 743 S.W. 549.20(2) (1982) (enactment of Minn.Stat. § Canada, 57 Me. Railway v. Trunk Grand Corp. Greenspun, 96 909); v. Summa Em 202, (1869) (common carrier); 223-24 (1980) brey Holly, v. (corporation 966 607 569 293 Md. A.2d Nev. P.2d Michigan v. Lucas (1982) (defamation); acts without Hughes’ not for Howard liable Co., Central Railroad Mich. 56 N.W. v. Winkler ratification); authorization Oil Sandifer (1893) (common carrier); Co., Indemnity Accident and Hartford Drew, Co. v. 609, 71 220 Miss. So.2d (1961) (conver A.2d N.J.Super Co., Rinker v. Ford Motor (1954); Neeld, Co. v. N.M. Oil sion); Samedan (test of de (Mo.App.1978) S.W.2d 655 drive Rich (1978); Roginsky v. 577 P.2d 1245 Safeway Rickman automobile); fective ardson-Merrell, Inc., (2d 378 F.2d 832 Cir. Stores, P.2d 124 Mont. Mahanna York); 1967) law New (citing (but Prosser reads case endorse Oil (N.D. v. Westland 107 N.W.2d 353 complicity rule); Clemmons v. Life Insur truck); 1960) repossession (wrongful Georgia, ance 416, 163 Co. 274 N.C. *7 Division, General Motors Gray v. Allison Radencic, v. Kurn (1968); 193 S.E.2d 761 348, 747 Corp., 370 N.E.2d App.2d 52 Ohio 126, 141 (1943) (railroad agent Okl. P.2d 580 Conti v. Walter Win (1977) (defamation); Denny’s v. Restau passenger); Stroud beat ters, Inc., 456, (1957) A.2d 622 86 R.I. 136 rant, Inc., 430, (1975) 271 P.2d Ore. 532 790 v. Fisher automobile); sale (deceit of (adopted 909 the Restatement Hotel, Inc., 424 Motor 627 Carrousel S.W.2d (Second), rejected distinction between Shortle (Tex.1967) patron); of bar (battery managerial nonmanagerial employees); and Corp., Public v. Central Vermont Service Club, Chuy Football Philadelphia Eagles v. (disconnec 32, 517 137 Vt. 399 A.2d 1265, (3d Cir.1979) (citing 595 1278 F.2d Mel Jordan v. service); tion electrical v. including Gerlach law, Pennsylvania 101, Corp., ville Va. 142 387 Shoe 150 S.E. 121, Pittsburgh Railways Pa.Super. 94 v. & Tea Co. Atlantic Pacific Great (1928); v. (1928)); Beauchamp Winnsboro 133 Lethcoe, 279 F.2d 948 (4th Cir.1960) (con Corp., 113 522, 856 Granite S.C. S.E. in false im struing Virginia law West 526, 533 Gray, Odum v. (1920); S.W.2d Inc., Sampsons, v. Garcia case); prisonment (need (Tenn.1974) expressly for ratification (1960) (as- 515, 103 N.W.2d 565 rejected). 10 Wis.2d Stone, sault); v. Campen P.2d 1121 liable and could nothing pre- have done (auto insurer). (Wyo.1981) vent the misconduct of its it employee, seems little value to award dam- punitive The four states in is au- which there no ages against many the in- employer. Alaska, thority are Hampshire, New South stances there is little probably that an em- Dakota, Supreme and Utah.- The Alaska can ployer prevent employee do the from Court did indicate in a footnote that “Re- committing outrageous torts. As one court (Second) statement of Torts 909 discusses found: the issue of employer ability The better control actions acts the agent.” Clary Agen- Insurance greater of the employee through supervi- cy Doyle, (Alaska v. 620 P.2d 201 n. 11 sion is illusory.... [Ejmployees often 1980). punitive The four states without perform their may duties where direct Louisiana, damages Massachusetts, are Ne- Further, supervision impossible. in- braska, and Washington. Ghiardi & Kirch- creased be supervision may well ineffec- er, 5-1, Table at 140. prevent tive to the occurrence of certain research, Summarizing our we find that damages may torts which be jurisdictions split are be- nearly evenly society’s assessed. Thus interest in the rules; tween the two we find no basis for preservation through of the social order the assertions that employ- course of punishment and deterrence fre- may ment prevailing rule is the rule. Conse- quently not be advanced when quently, justifications for either rule damages vicariously against are assessed assume a more dominant feature in our corporate master. determination. Systems Lines, Tolle v. Interstate Truck general justification The ascribed for the Inc., Ill.App.3d 771, 1 Ill.Dec. allowance of punitive is that they Note, Accord, N.E.2d punishment serve as wrongdoer Against Assessment Damages an Entre- Rowen, deterrent to others. preneur Employ- for Malicious Torts of His 661; Claude, at N.W.2d at 261 Iowa ees, 70 Yale L.J. 1296 158 N.W.2d at 143. Compensation of We have not previously suggested a ra- victim purpose, Central, is not a Team Inc. assessing punitive tionale for Inc., Teamco, (Iowa N.W.2d acts corporation for the of an 1978), for the victim receives dam- employee. did discuss the deterrence We ages only law, by grace and gratuity of the however, although element in Young, Claude, 261 Iowa at at this discussion was centered on the wisdom justification Punishment is a valid punitive damages against assessing punitive damages where corporation private it is relevant to the municipality, fault, at but with the of employment course corporation. 262 N.W.2d at 621-22. We rule, punished the one may be without fault Young governmental stated in that “if a merely would be held liable basis in punitive subdivision held answerable Thus, of its major role as employer. damages, go more care will into the selec- justification for the course of employment training employ- tion agents rule must be deterrence. Prosser at 2.§ ees.” Id. though Even may argued it goal of deterrence is adequately bymet To ex- This statement is too broad. *8 threat of compensatory damages, C. corporation McCor- tent it that a appears mick, wrongful Handbook of the Law of Damages might prevent have able to been (1935), corporation we will assume by employee, conduct an damages are punitive damages. needed to deter undesirable be In- should liable for obvious, however, deed, conduct. It is that there should the threat can be no effective corporation deterrence unless there an to the to take be incentive If, is some conduct which can be deterred. precautions employees. with its on Thus, hand, if an is employer only vicariously corporation other have done could since these else. And anywhere be found prevent employee’s wrongful to

nothing im- hung, neither be can conduct, little ideal existences punitive damages can have stocks,— put in effect, whipped, or corporation prisoned, to that deterrent either influence can fact no corrective This since in employers. as to other example or an except that upon bear them complicity brought to recognized by is distinction loss, does seem to us that pecuniary assessing punitive rule which in —it damages is exemplary hiring retaining of an unfit doctrine for reckless them, to application in its more beneficial provides taking an incentive for employee persons. to natural application than in its selecting training personnel. care in and (Second) 909(A); of Torts Restatement argument appropriate more We find this Riggs Montgomery Ward & Co. v. Marvin be held corporations should claims that for (Tex.Civ.App. 866-67 S.W.2d for the damages than for liable 1979) grossly negligent in allow (employer is corporation lia- when rule that defines ing to truck on employee operate unfit injured by party Difficulty proof ble. ground negligent entrustment). This concern is concern. legitimate is simplicity the merit of justification closely allied with Plaintiff also claims rule. employment difficulty more found in the course liberal rule because of the however, discovery rules are Today, modern or rat- experienced proving authorization respect. in this litigants to aid part corporate of the em- available ification Moreover, rule is also rela- Holly, the Restatement ployer. Embrey Plaintiff cites fairly easy to straightforward and (App.1982), tively Md. 442 A.2d 970-71 Campen, 635 P.2d at 1125. apply. quotes language which colorful from God- Railway, dard v. 57 Me. Grand Trunk Furthermore, complicity while the judicial (1869), 222-23 one of the first con- approach, may rule be a more conservative siderations of the issue: wide-ranging rule. We it is still corporation imaginary being. A is an will be made questions little doubt that It no its has mind but the mind of ser- pun will verdicts that juries and that find vants; it no of its has voice but voice rule is not complicity employers. ish servants; and it has no hands with which is solely employee limited conduct to act but the hands of its servants. All by corporation. authorized expressly mischief, as well its schemes Instead, em complicity rule extends are public enterprise, schemes of con- which it liability to conduct ployer employee by ceived human minds executed authorized, would difficult show was hands; human and these minds and par at employer is least but for which hands are its servants’ minds and hands. employed he blamesworthy tially because therefore, attempts, distinguish All be- Note, Liability Employ person. an unfit of the and the guilt tween the servant Damages Resulting from ers for Punitive guilt corporation; malice of of the or the 54 Chi-Kent L.Rev. Employees, Acts of corpora- of the the servant the malice rule, stat as Professor Morris (1978). The tion; punishment or the of the servant ed, from vica “wisely protects corporations punishment corporation, and the is when a rious nonsense; sheer tends con- supervised disciplined employ properly judg- fuse the mind and confound the allows wisely acts and it outrageously; ee malice, nor suffer- guilt, ment. Neither against some punitive damage awards existence, predicable ideal ing conscience corporations whose institutional yet And under cov- corporation. called at 222. 21 Ohio St.L.J. should be aroused.” there authority, er of its name and awarding wickedness, justification for as much There is little fact as much *9 par- innocent against an punishment, of as can deserving that is ty, it punish is reasonable to an employ- or that it approved ratified or of his acts. er employment for the reckless or The remaining retention issue is whether under sub- paragraph an or a of employee, ratification section McLane autho- approval acts, rized the and the outrageous doing Hyslop’s or manner of outrageous for acts acts. performed an by employee acting in a man-

agerial capacity. This is the rationale ex- attempts McLane to narrow the issue pressed by the drafters of the Restatement concerning the employee’s wrongful to acts of Torts and we believe this rationale is Hyslop’s intoxication. It then contends consistent with the concern we expressed undisputed that evidence is that against punishing innocent policyholders in McLane did not authorize this intoxication. Rowen, 282 N.W.2d argues It trial court al- erred lowing an amendment to conform to We conclude that the Restatement rule is proof that allowed considerations of acts more consistent with the purpose puni- other than intoxication and in failing tive damages than is the course of employ- give requested instruction which limited ment rule. Although there are arguments finding of willful and wantonness in favor of employment rule, the course of Hyslop’s intoxication. We do not agree weakening effect, of the deterrence Among with McLane’s assertions. other legitimate increase in the activities, cost is Hyslop’s evidence contention that he injustice and the punishing innocent, highway drifted over the center line of the all outweigh whatever benefits the course path into Briner's because he asleep. fell of employment Indeed, rule might present. addition; In a witness indicated that jurisdictions other recently adopted have Briner car took evasive action and drove this view. Mercury Express, Motors Inc. v. shoulder, onto the but that swerved Hyslop Smith, 393 (Fla.1981); So.2d 545 Campen v. onto the shoulder and hit the car. Hyslop Stone, 635 Thus, P.2d 1121 (Wyo.1981). except also testified that for a nap about hold the Restatement proper rule rule hour, an he not slept thirty had for some apply determining when corporate liabili- Moreover, hours. Hyslop posses- had in his ty damages for the acts an amphetamine pills sion and caffeine he employee. taking admitted to them at various times during trip. II. his Substantial evidence. McLane main- tains that there is insufficient evidence to There was also evidence that McLane was present fact issue to allow the issue of sleep- aware its employees’ driving punitive damages to togo under ing supervise habits but did not them. The either the Restatement or course of employ- employer evidence shows that or knew ment rules. We although determine that sleep- should have of its employees’ known there is sufficient evidence provide ing habits because of calls phone their rule, factual issue under either we need by examining gas slips. their and motel only discuss this issue under the Restate- guidelines McLane had no set schedules or ment rule. Indeed, for its drivers. J.P. McLane testi- fied Hyslop that whether Dennis drove for Under the Restatement rule em an thirty sleep hours with less than an hour of ployer may responsible dam Hyslop’s addition, was choice. McLane age as a principal’s result of the own con any did not time for re- established duct or because of the conduct of em viewing the logs kept by drivers and ployee a managerial who capacity. one-hundred-twenty days pass could before argument comment b. No was made logs the drivers’ were reviewed. McLane Hyslop managerial in a capacity, kept log knew not Hyslop had nor any was there evidence that McLane prior three weeks to his collision and that was reckless in hiring retaining Hyslop, log. previously keep he had failed to *10 including drivers, Hys- their his the habits of supervise to did McLane fail

Not and habits, supervision it utter lack of sleeping lop. McLane’s driving and employees’ the disregard to for incentive the training, coupled with an with provided employees the getting sufficient evi- long hours without is sufficient employees, work of the action paid the system it sleep. payment McLane’s whether question of to make dence rev- gross of the truck percentage drivers a of the and the manner doing the authorized of greater the number Thus the enue. driving question. in mon- truckloads, the amount of greater the was jury question conclude that We if the is evidence that earned. There ey McLane should to whether engendered as loading to it to a were unable make drivers it damages awarded loading the day, at a time of the site certain Thus, re-we rule. the Restatement under for anoth- postponed of the cattle would notwith- a judgment grant verse the of the weighed must be in day er cattle McLane. in favor of the verdict standing morning. Thus, great there was incentive a new have ordered judge The should trial morning. by early to arrive in as set out proper rule under the trial plain- trial Prior the commencement of opinion. I this division of Hys- petition urge tiff amended her a new view of our determination In for driving in his truck lop negligent was theory out- must ordered under trial in of that periods of time excess consecutive Restatement, ad- we need not in lined Iowa section 821.225. authorized under Code ir- concerning contentions dress McLane’s shall provides person This section that no special The verdict verdicts. reconcilable commercial vehicle for hire operate a by were arrived at of verdict period general twelve hours out more than of under the twenty-four upon they of hours were instructed any period jury after duty rule, from highway being without relieved rather than employment of course eight depending ten hours for either longer is no rule. The verdict complicity driving was consecutive. whether effective. prohibits employer 321.226 Code section In its cross- cross-appeal. III. McLane’s allowing drivers to violate section from its judgment of the appeal seeking reversal viola- The is whether a question 321.225. McLane claims compensatory damages vio- along with other provision, tion of this (1) respects: in two the trial court erred lookout, con- provisions regarding of lations relevancy ob- over admitting into evidence trol, speed, right way, yielding the por- jections photographs certain high- of the right-hand on the side traveling witnesses; two testimony of tions of the gives the to conduct that way, may amount jury as a matter instructing punitive damages. jury discretion to award entitled com- plaintiff law that damages. pensatory falling asleep generally act The conduct that would would not constitute without that we are Plaintiff contends case, how punitive damages. allow issues because these jurisdiction address ever, length the facts are extreme. cross-ap- to file notice McLane failed accompa driving is so excessive and time by Iowa required peal period within stimulants, indi use of nied the driver’s 82(d). 5(a) and Procedure Appellate Rules of of his condition cating that the driver knew thorough review We conclude after a danger. despite persisted driving did that McLane and affidavits evidence conduct is unintentional conscious and Such cross-appeal. timely file a notice will of a wanton and substantial evidence argues that Relevancy. McLane A. safety of others. disregard ful evidence admitting into court erred in trial accident the scene of the photographs of McLane or apparent is also It subsequent the vehicles and the condition fully were aware managing agents *11 to the accident. McLane also contends that McLane admits that it the owned allowing Sergeant the trial court erred in truck and that was Con Hyslop negligent. Morrill, Patty passenger Mathers and the the sequently, although proof burden vehicle, the Briner testify. to In each in- the plaintiff, pre remains with there is a preserved stance McLane error with its ob- sumption Hyslop driving that was with jection that the evidence was irrelevant consent, Dodge, v. 261 McLane’s Abel Iowa any controversy. issue of the 1, 4, (1967), N.W.2d and there showing must be sufficient to the con Evidence is if relevant it renders trary finding. if the owner would avoid that the existence of a fact or probable more less Welzien, v. Bridges 231 Iowa 300 N.W. probable with it than without it. Carson v. 659, dispute There is no that Mulnix, N.W.2d The Hyslop driving McLane consented to the basic test the relevancy question is Rowley, truck Iowa. McLane ar now challenged whether the evidence makes the gues, however, it did not consent to desired inference probable more than it in Hyslop driving the truck while he was would be without the evidence. Anderson toxicated. It contends that the issue of v. Housing Low Rent Commission of Musca consent should have been submitted to the tine, (Iowa 1981). jury and that the district court erred probative evidence must be and tend to instructing the to return a verdict establish a proposition. Ques material Id. compensatory damages against McLane. tions of are relevancy for the trial court to If the owner of the vehicle motor does resolve. Id. oppose not the inference of consent with evidence, plaintiff prevails then and the points out Hyslop had McLane issue jury. need not submitted to the admitted liability only and contested The record following: shows the damages issue. McLane claimed (1) Hyslop testified he knew it was remaining issues were whether the truck against was rules to drive when he driven with its consent and whether it drinking. should be damages. assessed With issue, negligence longer no McLane it McLane testified that claims that the photographs and testimony company job. rules to drink on the were irrelevant. ignores McLane the fact (3) McLane testified that its drivers take that plaintiff prove outrageous must Trucking Test American which conduct photographs defendant. The refers to the and DOT rules ICC and the testimony witnesses’ assisted the against drinking. jury in determining specifics of Hyslop’s (4) McLane testified that ter- Hyslop was driving conduct and how the collision took disciplined minated and as a Scowden nature, place. extent, These facts show the result of the drinking. wrong. of the enormity They are addi tional circumstantial evidence of the intent It is arguable present that McLane of the party committing the act. We find ed ques sufficient evidence create a fact no part abuse of discretion on the tion whether was informed that Hyslop trial court in admission of this evidence. company against drinking had a rule driving.

B. while Even if so Consent. he had been Iowa Code section 321.493 informed, however, not provides: damage “In all cases this evidence does where escape liability done allow McLane to any motor vehicle com by reason negligence driver, the owners pensatory of the and driven with under liabili owner, ty the consent of the can limit the owner statute. An owner his his negligence motor vehicle shall liable for such dam- for the of the driver of motor age.” making vehicle by his consent conditional. damages. time, A. purpose Submission prescribing place,

By overrule our this court Hyslop invites used, the own- for which the vehicle can be Frink, in Berenger conclusion driver deviates liability if the escape er can damages are (Iowa 1982), consent. scope materially from actions in wrongful death recoverable in 443, 448-49, Stafford, Usher v. invitation. We decline the Iowa. (1939); Robinson v. Shell 288 N.W. *12 1252, 251 N.W. Corp., Petroleum 217 Iowa to well-es decline overturn We also However, generally (1934). the owner 613 may be precedent party that a tablished for mere such a devia- cannot avoid damages in a civil action assessed which the manner tion from instruction on guilty or has though pleaded he has even Motor Vehi- is used. 60A C.J.S. vehicle Hauser v. Grif crime. been convicted 442(6)(b), (1969). For exam- cles at 1065 § (1897); fith, 215, 71 Iowa N.W. by ple, escape liability the owner cannot 21 Iowa 379 Kingsbury, v. Hendrickson speed if exceeds the stating that the driver to con We no Iowa cases (1866). find driving permission. limit he is then without trary. allow the own- Any other conclusion would he was denied contends that Hyslop also nearly every case escape liability er to under his self-incrimination rights showing authority was that some violated. to the amendments the fifth and fourteenth Highway 7A Am.Jur.2d Automobiles and This was issue Constitution. United States 677, (1980). Traffic at 911 cannot to the trial court and presented not v. on this appeal. State considered We conclude that under section 684, (Iowa 1982). Windsor, 316 N.W.2d justifiable distinguish to viola it is 321.493 time, pur or place, tions restrictions on Iowa Rule of B. Severance. pose of the use of the vehicle from restric authorizes the expressly Civil Procedure on for trial “to purpose separate tion manner of use. The trial issues court to separate protect party prejudice.” statute is to an innocent third avoid Refusal discretion and matter of the trial court’s of motor vehi operation from the careless if the court abused will be disturbed responsible cle and to make the owner Rapids Barnard v. Cedar discretion. negligence of one to whom the owner 752, 133 734, N.W.2d City 257 Iowa Cab operation. entrusted its v. Pil See Stuart abuse of discre (1965). There no grim, was exercised tion unless “that discretion reasonably can This entrustment clearly grounds for reasons untenable on or time, place, purpose on or with conditioned clearly unreasonable.” extent undermining purpose out of section Morrison, v. 323 N.W.2d State However, 321.493. if we allowed the owner (Iowa 1982). solely to terminate his consent on the basis purposes It that the driving of the manner of would subvert is well established punitive damages are Driving compensatory after purpose the statute. Briney, distinct. Katko drinking is a driving manner 1971). that be- (Iowa Hyslop argues McLane is unable to condition its consent together were tried cause the issues driving drivers’ not while intoxicated. from the evi- not divorce itself jury could Hyslop’s IY. contentions. Defendant Hyslop’s conduct when determin- dence of containing filed a two Hyslop cross-appeal damages and therefore ing compensatory damages (1) issues: whether are plaintiff compensatory greater awarded wrongful death recoverable actions had sev- than if the issues been Iowa; court whether the trial ered. refusing its discretion in sever abused of discre compensatory the issues of We not find an abuse do reasonably have damages? tion. The trial court could negli- concluded that severance the issues tive are not awarded for gence would result in two It only. (Second) trials. could also Restatement of Torts have concluded that Hyslop’s request 908 comment b severance was made at the eleventh hour— punitive damage We see awards in more the completion dire, after voir cases; they becoming more are com- prior opening Moreover, to the statements. monplace rather than extraordinary. I the trial court could as- reasonably view this trend with alarm. I think we jury sumed that the instruction would ade- should allow compensatory damages liberal- quately protect Hyslop from any potential ly compensate prevailing fully claimants prejudice. We notice also that injuries, for their actual but we re- should arrived at compensatory damage award truly strict to the extra- substantially sug- less than that ordinary they situations in which are appro- gested by plaintiffs expert economist. priate. agree I Id. comment /. with the

Y. Conclusion. We have all Judge McLane, considered District that as to *13 this is not parties contentions raised a punitive case. damage we now affirm the judgment the district

court, except judgment that the JJ., WOLLE, CARTER and concur in this damages against McLane is reversed and partial concurrence and dissent. remanded for a new trial accordance opinion. with this PART;

AFFIRMED IN REVERSED

AND REMANDED IN PART.

All Justices except concur UHLEN-

HOPP, WOLLE, JJ., CARTER who con- part

cur in part, and dissent in and REYN-

OLDSON, C.J., who concurs in the result.

UHLENHOPP, (concurring Justice

part, dissenting part). I concur in all of opinion the majority FREEMAN, Appellee, Clarence

except division II and the result. I would adopt the complicity rule majority as the does, but judgment. I would affirm the TRUCKING, INC., BONNES Oran me, To driving absent the element of Bonnes, and Guardian Life Insurance while negligence intoxicated this would be a Company, Appellants. case, although strong one. The added 68603. No. driving permits intoxicated award of an.

punitive damages against Hyslop. Sebas Supreme Court Iowa. Wood, 94, 106, tian v. 246 Iowa driving, The intoxicated Aug. however, permit does not puni award of 13,1983. Rehearing Denied Oct. tive against McLane without sub stantial evidence of complicity regarding driving intoxicated in at least one of the

respects Restatement, stated in the

such appear. evidence does not Substantial

evidence of McLane’s complicity regarding

Hyslop’s negligence appear, does puni-