*1 263 repetition again that At cost of some we refer the contract stipulation in express It relationship (1) plaintiff’s and since the to the record. afor- shall arise reveals 26, may be deter- occupancy given April esaid forfeiture notice was of an character 1971; (2) so that subsequent, a condition contract stood 30 mined forfeited thereafter; (3) event will de- days possessory of a future the instant happening occupant 30, of land not whether action was commenced until June termine or as a capacity a tenant holds 1971. given may be one An election purchaser. gave But on June relationship whether the to choose party day quit. a three defendants notice to This and tenant or that of landlord be consequence, however, no since we is of a contract for vendee. On
vendor repeatedly have held the of such service lands, may, by parties the sale interrupt peaceable notification does that on default stipulation, agree express Brodsack, possession. 215 See Thomas v. pur- being payment made in the 503, (Iowa 1974), 505 and citations. money, the contract shall be treat- chase lease, option being reserved to as a ed ap Under these it is circumstances instance, and in the first purchaser peaceable parent possession Yocums had his failure to the vendor on passing property concerned, plain here made to treat an election is elect. When knowledge, days tiff’s for more than 30 lease, the time it relates back to it as right Warren’s after of action accrued. made, and creates contract was when the Therefore, plaintiff’s possessory cause from and tenant relation of landlord 648.18, was barred under Code thus man- § day with all its incidents.” dating a case. dismissal that Warren’s appear would therefore It Although trial court for defendants held general- quit notice served 1971 June ground upon agree another with the we relating back to a leasehold ly to establish Staab, result reached. See In Re Estate of contract, executory and Yocums date 1971). tenants at sufferance. See thereafter were Affirmed. 81; Tenant, Am.Jur.2d, § Landlord and 175—176. Tenant concur, LeGRAND, J., §§ Landlord and 51C C.J.S. All except Justices dissents. who 648.18, quoted Looking now Code § above, says peaceable clearly a tenant’s days accrual of the for 30 after
possession may latter right of action bar the
landlord’s entry and having of forcible benefit relief.
detainer War- must therefore
We determine right action accrued. possessory ren’s RAPIDS, CITY OF CEDAR Iowa, Appellant, forfeiture It not be the contract could had or times since defendants time notice perform which to days thereafter within MOSES, Appellee. John Nelson terms or conditions. defaulted No. 56496. follows, perforce and we now From this it upon hold, right accrued Supreme Warren’s of action Court of Iowa. day period following expiration Nov. 1974. notice. his last forfeiture giving of by Yocums peaceable possession This means date thereof. on effective
commenced 4.1(23). regard in this Code §
See *2 April a. m.
About 11:15 while checking parking limit city zones in the Gillen, an James officer assigned to motor- for the cycle patrol traffic division of the Department, Rapids Police Cedar received a directing him radio call to assist at an acci- *3 shopping a dent at center. As Gillen en- at tered First Avenue in response 35th the order he was by informed another call that an ambulance was in route and a wom- pinned an was under a Considering trailer. an emergency this then to be run Gillen turned on the red and siren of the McGuire, Atty., and James City F. David motorcycle point at this proceeded east and Redmond, appel- City Asst. for Atty., M. in the direction of the shopping center trav- lant. eling in the center of the street Inger- & Bickel of Shuttleworth John M. “storage lanes” because of the double lanes appellee. soll, Rapids, for Cedar traffic in the eastbound lanes.
At 38th there three Street were lanes of moving right, traffic to Gillen’s two in the eastbound lanes and one in the left turn MASON, Justice. stopping momentarily lane. After appeal presented by issue through traveled the intersection continu- negligence as a matter it is is whether Shortly after ing crossing east. the inter- traveling in a law for he encountered rubber cones in the city a multilane street of a lane of proper placed been street which had there two-way movement providing for town engineering department to mark lines line to the left cross center traffic to just painted. been Ordinarily which had wrong way in a to travel the proceed and police department does not receive movement of traffic in providing for lane engineering from communication appeal direction. The arises opposite regarding department the locations where City brought by the law action they painting from are lane marking lines. Gil- damages property to recover Rapids they Cedar turned left of len these cones since patrol mo- police two-wheeled of its present motorcycle although to one a hazard to a result of a collision between torcycles as automobile. are not to an We told automobile motorcycle motorcycle and a Pontiac were to if a collide with record defendant, being John undoubtedly put driven of the cones would owned one ground. on the cycle Moses. Nelson As Gillen traveled 38th Street east from Rapids at First Avenue Cedar from two to was five feet left of these he a multi- time material here was points and lane, is, proceed- that in a westbound cones easterly running general street in a lane wrong side the street. He ing up the two There were westerly direction. in this line travel to 40th continued lines for by broken white separated lanes where the collision occurred. Street west- traffic and two lanes for eastbound separated man- traffic in a similar traveling bound his fiance Moses and had been referred to ner, plus a center turn lane on First Avenue since 17th in- east Street The lanes storage tending stop as “the lane.” for at McDonald’s the record lunch sepa- eastbound traffic were the north side of First Avenue at provided for located on they When reached 38th provided for westbound 40th Street. from those rated stopped light. for a traffic As yellow Moses solid lines. Street by two traffic negligence specifications al- First Avenue from one east on proceeded he indicating leged by plaintiff limiting the use of he saw the cones intersection strike, put down and his left another. Various motions to to con- paint, slowed wet they According proof to Moses signal form to renewed mo- turn on. defendant’s painting about a half block stopped tion directed verdict were overruled and had him to 40th which would enable jury Street the matter was submitted “storage lane” for left turns at pull into returned a defendant’s verdict. no there were cones at since 40th Street In instruction 16 the was told the traveling said he was point. Moses vehicle, operator of a motor in cities and per miles hour when he two or three only towns, required right- was to travel on the He then “storage lane.” into the turned hand side of the center of the street and McDonald’s and into began his left turn comply provision that a with this failure to driveway feet from only a few *4 negligence. law jury of the constituted The impact occurred. The the collision when requirement further told was this did not lane as the in the inside west occurred operator of a motor apply to the vehicle the area the Moses car in motorcycle struck turning his left vehicle across the center of wheel. left front of the private street to enter a drive. negli- alleged defendant’s had Plaintiff (17) legal The court’s instruction on ex- particulars several in one or more of gence will be cuse considered later. cause of the collision and proximate awas motorcycle. Defendant in damages its to jury In another instruction was told allegations and de- admitted some answer emergency driver of an authorized vehi- specifically each He denied others. nied responding emergency to an cle call shall negligence of as- every specification any special privilege not assume under the allegation and the as to by plaintiff serted privilege granted except ap- law in the collision. cause of proximate proaching stop sign signal a red or or asserted as an affirmative Defendant also pass sign signal cautiously (section such employees its plaintiff and were defense 321.231) privilege speed and the to exceed particulars or more of five negligent in one (section 321.296). limitations the colli- proximate cause of was a which for plaintiff In motion new trial main- defendant assert- specification one sion. In tained the court in failing give erred its driving negligent was in plaintiff ed requested legal instruction on excuse and in the left of the center line vehicle to motor interpretation its of various sections of 321.297, The Code. violation of section chapter The Code. opinion to statutes in this All references pointing The court overruled the motion Code, 1966. are from The it had any special privi- out failed to find jury. At the conclusion of Trial was to a lege emergency for the driver of an vehicle case moved to strike defendant passing driving wrong or in in the traffic plaintiff’s petition, of allegations certain lane. withdrew or some of which conform requested permission to amend to I. It traveling is conceded Gillen was ruling court reserved on proof. The east inside lane for traffic westbound defendant’s motion to portions of some dividing left of the center line the lanes for allegations plaintiff’s peti- of other strike eastbound and westbound traffic at overruled the balance of the mo- tion and also time accident. It is conceded motion for a directed Defendant’s tion. plaintiff’s motorcycle in this instance was was also overruled. verdict an authorized vehicle and making an the court Gillen run the close of all evidence At answering striking shopping the call to the earlier motion center. on defendant’s ruled streets, protect nor shall it violation driver held to be a court The trial consequence from negligence as and was 321.297 section jury negligence.” ac- his law instructed matter cordingly. indicated, As the trial in instruction court provided: as then in force
This statute 18 informed the of the existence of privileges. these two oper- “Traveling right-hand side. The on towns, vehicle, in cities and a motor ator Plaintiff contends that fn addition to the right-hand travel on the all times at “special privileges” two recognized street.” the center side trial court in its instructions 321.324 section “special a third privilege,” constitutes to be repealed and substi- since It has been by an emergency exercised vehicle when First Session See Acts of tute enacted. making run the trial which Assembly, chapter Sixty-fifth General ignored. Plaintiff argues court that there- 216, section 1. in interpreting the court erred chapter applicable made former statute was The Code, as prohibiting The authorized 321.230 governmental emergency vehicles traveling to the provides: center line of left of the a multilane street provi- exempt. officers “Public in cities and towns making emergen- chapter applicable to the driv- of this sions cy runs. *5 ap- shall upon highways the of vehicles ers Kisling 911, In Thierman, v. 214 Iowa owned or of all vehicles to the drivers ply 915, 243 N.W. it is said: States, this state or United by the operated town, district, any or other county, city, any the satisfactory “We think most rule state, subject of to the political that, subdivision except by statutory would be where forth in exceptions as are set specific provision such it is otherwise specifically provid- reference to authorized chapter ed, with obey this to any provisions the failure (Emphasis supplied). emergency vehicles.” of the statutes or providing ordinances the manner, use, of operation method the exceptions granting special specific highways, including vehicles on the of are: privileges streets, with together any provisions there- “Emergency vehicles. 321.231 Section governing equipment the in of vehicles and any emergency authorized The driver thereof, negli- use should to be held be responding emergency to an when vehicle gence, prima neg- facie evidence of stop signal a red or approaching upon call ligence. down as neces- stop sign slow any or sary for safety but may proceed cautiously [*] U [*] [*] “ * * * stop signal. At sign red or or such
past [Wjhere the statute or ordi- emergen- times drivers authorized other care, nance has fixed the standard stop stop to a in obedience cy vehicles shall negli- to observe such standard is failure * * sign signal.” or in the trial of a gence, and when case failed to it is shown that defendant vehicles— “Emergency 321.296 Section fixed, of care thus observe the standard speed limitations set forth speed. The made, for the in the first in- case is authorized chapter apply shall not this case, may stance. In such defendant responding vehicles when emergency proof excusing his to observe offer failure drivers thereof emergency calls If, however, siren, bell, legal standard care. or ex- signal by audible sound proof legal ex- to furnish of such provision This shall not re- he fails whistle. haust cuse, negli- say then it is accurate to that emergency anof authorized lieve the driver established as matter of law.” duty gence with is from the to drive due vehicle supplied) safety persons using (Emphasis of all regard for 268 statutory this court The fundamental rule of in 1932 decision Since excep and, is to consistently possible, held that with construction ascertain if
has
requiring
give
321.298
to the
purpose
violation
effect
intention or
tion of
meeting
give half
legislature
by
legis
each other to
as shown
what the
vehicles
by turning
right,
said,
way
which
lature has
rather than
traveled
what it should
negligence,
merely prima facie
might
may not,
have
constitutes
or
said. A court
other
legal
extend,
without
excuse of
stat
construction,
guise
violation
under the
en
negli
is
law of the road
regulating
large
change
utes
or otherwise
the terms of a
or as a matter of law. Lemke
per se
gence
problem
This
has been
statute.
discussed
860,
Mueller,
(Iowa 1969).
866
166 N.W.2d
Fulton,
v.
by the court
Janson v.
162
438,
(Iowa 1968);
442-443
N.W.2d
State v.
Thus,
in order for
to avoid a
Vietor,
(Iowa 1973);
208 N.W.2d
898
se,
per
it
holding
negligent
it was
must
Edison,
v.
Osborn
697
statutory provision
another
point to
either
1973);
Johnson,
State
otherwise, or
“specifically” provides
which
(Iowa 1974).
Each of these
failure to ob-
proof excusing his
“offer
many
cite
decisions
authorities considering
Kisling,
legal
standard. See
serve” the
question of statutory
construction.
915,
grant drivers “Legal by is a doctrine excuse center line privilege cross the special to avoid consequences one seeks making his in cities and towns when an streets by showing justification conduct run. own emergency
269 negligence per be considered submission of the which would otherwise se. This acts objection upon us is based negligent. This doctrine has been before a claim that Section 321.324 of the (1966) times and has been defined to mean: Iowa Code many constitutes impossible statutory (1) exception prohibition that would make to the anything ordinance; (2) (1966) the statute or Section 321.297 comply Iowa Code alleged the driver has no con- anything by over which violated Officer Gillen.” position car in a con- places trol which his plaintiff At no time complain does trary provisions to the of the statute or trial court’s failure to include the third ex- ordinance; (3) where the driver of the ear is cuse—“where the driver of the car is con- by confronted an not of his own fronted not of his own making, by reason thereof he fails to making, obey reason thereof fails to statute; (4) spe- where a statute obey the the statute.” provides exception. an excuse or cifically An Young has been defined in Hendricks, is, course, v. “It settled that 226 Iowa well 283 N.W. 895, 898; own negligence Guiter, 671, has Brown v. one whose caused 256 Iowa 678, 901; 896, to a situation which makes it 128 N.W.2d contributed Oakes v. Peter Bakers, Inc., 447, obey may 458, him to the law Pan impossible for 258 Iowa 100; 93, Wolfe, conduct as a basis for invok- N.W.2d Baker v. rely upon such * * * ing [citing (Iowa 1969). authori- the doctrine. Wilmeth, Gibbs v. Iowa ties].” Therefore, we do not reach the court’s 93, 96. failure to instruct emergency, on sudden legal requested Plaintiff an instruction on the the third excuse. meaning legal excuse which set out the In view of our determination in division I recognized
four excuses in Gibbs Wil- opinion of this that section 321.324 does not However, meth. the trial court’s instruc- statutory exception constitute a pro- to the legal only tion on excuse set out the first hibition set forth in plain- section 321.297 of these. and second tiff’s attack on instruction 17 is without
In motion for new trial com- merit. plained of the court’s failure to include in III. In divisions III and IV of its brief given theory legal “a the instruction argument plaintiff insists it was denied specifically excuse exists where a statute trial and overruling fair the court erred in exception”, an excuse or the fourth provides its motion for new trial. recognized excuse. *7 argument support in Plaintiff’s ruling denying motion for new In its having its contention of not received fair plaintiff’s of the view trial the court was solely trial is based on the trial court’s properly requested was not since instruction interpretation 321.324. Since we day first of trial as it was not filed the have determined the trial court was correct pretrial the order. Plain- provided for in interpretation plain in its of that statute request after learned iff’s was made counsel argument tiff’s is without merit as is its negligent court was to hold it as a the claim for new trial. disagree of law. We with the trial matter The case is therefore reasoning the circumstances under court’s Affirmed. request the on its merits. and consider II of written brief and Division MOORE, RAWLINGS, J., Le- C. and argument solely is directed to the trial JJ., GRAND, UHLENHOPP, REES in instruction 17 failure to include court’s concur. excuse. Plaintiff tells us its the fourth HARRIS, objecting to the Trial and McCOR- theory “entire in REYNOLDSON MICK, JJ., the dissent. jury instructions is based on Court’s they be studied for conflicts between should HARRIS, (dissenting). Justice general specific statutes. If such con- dissent from I of respectfully I division appears specific flict the statute controls. My and the result. majority opinion the Jefferson, 190 City v. Shriver question the of whether is on disagreement 1971). 321.297 is a Section Code, 321.324, provides specif- The § general all applicable statute to motor vehi- “with reference to authorized exemption ic spe- cles. the Section 321.324 treats more contemplated as in emergency vehicles” subject of the cific movement of I think it does. Section 321.324 321.230. § Accordingly it should vehicles. control. I accords specific. me think it seems to yield imposed upon The to obligation right of emergency vehicles the authorized traveling public by 321.324 does exist § required way to those vehicles preference corresponding rights in a vacuum but raises yield. to the emergency to vehicles. That such vio- statutory whether a question of legislature rights by the is were intended negligence is unaffected wheth- lation is evidenced the last sentence the sec- to do an is act for er mandate tion. The sentence is a limitation on the 321.324) (such as in isor another benefit of specific by the exemption outlined section: against doing of an act. prohibition operate “This section shall not [321.324] Statutes, Am.Jur.2d, I page 529. § relieve the driver of an authorized emer- specific 321.324 is less a do not believe § duty to gency drive vehicle from it'is couched in terms of exemption because regard safety due of all persons for the yield rather than obligation of others using highway.” right in terms of I jury it instruct believe was error to yielding. to benefit from Sergeant negligent as a matter be read in the 321.324 should Section negligent oper- of law. Whether was 321.1(48) light which defines streets of § motorcycle ate his left of the center of “ * * * entire highways as ques- street the circumstances under was a every way lines property width between tion of fact for the to decide. I would any part nature place of whatever reverse and remand for a new trial. open public, to the use of the as a thereof is purposes right, for of vehicu- matter of REYNOLDSON, McCORMICK, JJ., lar The section should also be traffic.” join in this dissent. 321.1(66) read § “ * * * way right of as defines high- of the immediate use of the privilege
way.” relating ve- Statutes should chapter be construed
hicles
together. consistently that stat- have also held “We Iowa, Appellee, STATE of subject relating utes to the same matter or *8 construed, closely subjects allied must be FARRELL, Appellant. Patricia M. and examined considered their and intent. purposes common Such No. 55658. pari ‘in are said to be materia’.”
statutes Supreme of Iowa. Court Hawkeye Tel. Co. Bell Northwestern Co., State Tel. Nov. 1974.
1969) citations. emergency vehicles are
When statutes
gathered together for such construction