Allied Mut. Cas. Co. v. Long

• Court: United States State Supreme Court of Iowa
• Citation: 252 Iowa 829,107 N.W.2d 682
• Docket Number: No. 50193,50193
• Parties: ALLIED MUTUAL CASUALTY COMPANY, Incorporated, Appellant, v. George Harlan LONG, Appellee.
• Decision Date: 07 February 1961

Page 682

107 N.W.2d 682

252 Iowa 829

ALLIED MUTUAL CASUALTY COMPANY, Incorporated, Appellant, v. George Harlan LONG, Appellee.

No. 50193.

Supreme Court of Iowa.

Feb. 7, 1961.

Rehearing Denied April 4, 1961.

Boardman, Cartwright & Druker, Marshalltown, for appellant.

Lundy, Butler & Wilson, Eldora, and L. E. McGinnis, Marshalltown, for appellee.

THOMPSON, Justice.

This appeal involves two assignments of error. The trial court, after issue joined, made an adjudication of law points under the provisions of R.C.P. 105, 58 I.C.A., in which it held plaintiff's petition stated a cause of action. Eight days later, however, it changed its ruling, held no cause of action was stated, and dismissed the petition. The court stated it had not understood the allegations of the petition as plaintiff's counsel later advised it they were intended, nor as involving the substantial question which plaintiff sought to raise in the case. In the light of its later interpretation, the court found no cause of action pleaded, and dismissed the petition. Plaintiff's counsel do not agree with the final interpretation put upon the petition by the court, but contend it was in error in its application of the law.

I. We are first confronted with a question of procedure. The plaintiff urges that having once made its ruling under Rule 105, the court was without power to change it, and was in error in attempting to do so. The material part of Rule 105, upon which the plaintiff relies, is this: '* * * It (the court) shall enter an appropriate final order before trial of the remaining issues, adjudicating the point so determined, which shall not be questioned on the trial of any part of the case of which it does not dispose. * * *' (Italics supplied.) Plaintiff cites Weik v. Ace Rents, Incorporated, 249 Iowa 510, 513, 87 N.W.2d 314, 317, and Litchford v. Iowa-Illinois Gas & Electric Co., 247 Iowa 947, 952, 75 N.W.2d 346, 348. The Weik case says only that the adjudication was a final order and that no motion for judgment on the pleadings was necessary. Litchford holds that when law points have been determined under Rule 105, they should be followed on the trial and may not there be reversed or questioned. Neither is determinative of the point to be decided here. We have universally held that the trial court may, at the same term, change or modify an order or judgment. Concannon v. Blackman, 232 Iowa 722, 728, 6 N.W.2d 116, 119, and cases cited. It is true this case, and the authorities cited, were all decided before the adoption of the rules of civil procedure. But we think the principle is the same. Rule 105, so far as it says the order shall not be questioned on the trial, means that it is final on the question decided when further proceedings are had. It is a guide by which the parties may determine their conduct if any issues remain. But we do not think it prohibits the court from changing its ruling before any such issues are reached; or when, as here, it determined the case and dismissed the petition. A court may always correct error into which it has fallen, before final judgment. Kuiken v. Garrett, 243 Iowa 785, 792, 793, 51 N.W.2d 149, 154, 41 A.L.R.2d 1397, and citations. The advantage of this rule is apparent here. If the court, although convinced its first ruling was in error, had not been permitted to correct it, it must be presumed the cause would have proceeded to trial and the court at that point would not have been permitted to change the ruling. Under the plaintiff's interpretation of Rule 105, a change could have been made only on appeal. We think this is not the meaning of the rule. At least until other proceedings have been taken, the trial court has the power to change its rulings under Rule 105 if convinced they are in error. We find no merit in plaintiff's first assignment.

II. The second, and major, question presented by plaintiff's appeal is whether, under the circumstances existing as shown by its petition, it is necessary in a suit for contribution for the plaintiff to plead, and prove, its own actionable negligence to the third party injured. Briefly, the case as made by the petition, which is the governing consideration here since the matter was decided upon the pleadings in the trial court, is that the plaintiff's insured, operating a truck-trailer motor vehicle, was following an automobile owned and driven by the defendant; without signal or warning the defendant suddenly slowed the speed of his automobile so as to bring it to a near stop. Defendant's car was not equipped with any signaling device for warning traffic in its rear. As a result of the sudden slowing of the defendant's automobile plaintiff's insured was faced with an emergency and in order to avoid colliding with defendant's car the truck-trailer operator applied his brakes and attempted to steer his vehicle so as to avert a collision but was unable to do so and collided with an oncoming automobile driven by one Davis and Davis was instantly killed.

It is further pleaded that a settlement was made with Davis' estate by the plaintiff on behalf of its insured, in the sum of $15,500; and recovery of one half of said sum, or $7,750, was asked; the prayer of the petition being 'that it (plaintiff) be granted a right of equitable contribution against defendant' and that judgment be rendered against defendant in the amount above set forth, with interest and costs.

The fighting point in the case arises from the allegation in the petition that plaintiff conducted an investigation of the mishap and 'the facts of the matter were such that if the matter had been litigated, the trier of fact might reasonably have found that the Plaintiff's insured was negligent in the operation of his said motor truck unit at said time and place * * *'. Certain specific negligences of the insured which might have been found by the fact trier were set forth; and it was alleged these might also have been found to have concurred with the negligence of the defendant as being the proximate cause of the accident. Specific negligences of the defendant were also pleaded.

It will be observed that the plaintiff did not plead that its insured was in fact negligent; only that the trier of fact might have found it to be so. The trial court, on its determination of law points, held this to be a fatal defect, and dismissed the petition.

It is not disputed that the right of contribution among tortfeasors may arise where one of them has made a settlement instead of litigating its liability to the injured third party. We have recently so held. Hawkeye-Security Insurance Co. v. Lowe Construction Co., Iowa, 99 N.W.2d 421. Nor does the plaintiff deny that generally the right to contribution among tortfeasors is based upon a common liability to a third party. It presupposes actionable negligence of the tortfeasors making all liable to the third party. Best v. Yerkes, 247 Iowa 800, 805, 77 N.W.2d 23, 26, 27, 60 A.L.R.2d 1354; Constantine v. Scheidel, 249 Iowa 953, 958, 90 N.W.2d 10, 13; Hawkeye-Security Insurance Co. v. Lowe Construction Co., supra at pages 428-429 of 99 N.W.2d; 13 Am.Jur., Contribution, Section 51, page 48; 18 C.J.S. Contribution § 3, page 4.

But the plaintiff thinks this rule should not apply in cases where one of the alleged tortfeasors has entered into a settlement with the injured party. It says it has been developed in cases where the injured party has sued one or all of the tortfeasors, or where one sued tortfeasor has impleaded the others and the matter proceeds to trial and judgment against the tortfeasors; or where the injured party has sued one of the alleged tortfeasors and recovered judgment. But it would have us draw a distinction when one of the tortfeasors has settled with the injured party before trial. In such a case, as in the one now before us, it is contended an alleged tortfeasor should have the right to make a reasonable settlement if it appears a trier of the facts might reasonably have found the settlor liable because of negligence, and it is sufficient to plead and prove this situation. With one exception, no authority is cited by the plaintiff which supports its position. In this connection, the term 'joint tortfeasors', which is commonly used, should in fact be 'concurrent tortfeasors', as is pointed out by Judge Henry Graven of the Federal District Court for the Northern District of Iowa, in Chicago & Northwestern Ry. Co. v. Chicago, Rock Island & Pacific R. Co., 179 F.Supp. 33. But we conclude, as did the learned federal judge, that the term has been so commonly used that it is commonly understood. This usage is confirmed by the definition given in the Uniform Contribution Among Tortfeasors Act, Section 1, 9 Uniform Laws Annotated, which says: 'For the purposes of this act the term 'joint tortfeasors' means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.' We use the term in line with this definition, as applying to concurrent tortfeasors.

The sole basis for contribution among joint tortfeasors is a common liability. The cases, including those cited above, which so hold are legion. It is a fundamental principle of the right; without it there is no right. There may be, under proper circumstances, a right to full recovery of sums paid on the theory of subrogation or of full indemnity, as the Wisconsin Supreme Court has pointed out in Farmers Mutual Auto. Ins. Co. v. Milwaukee Auto. Ins. Co., 8 Wis.2d 512, 99 N.W.2d 746, 750. But contribution will not be available in any case unless there is a common liability. This was emphasized in American Auto Insurance Company v. Molling, 239 Minn. 74, 57 N.W.2d 847, 850, where is quoted with approval these statements: "Since the right of contribution depends upon the satisfaction, by one of several obligees, of an obligation which would otherwise fall upon all, it is essential...