Band v. Reinke
| Citation | 298 N.W. 865,230 Iowa 515 |
| Decision Date | 17 June 1941 |
| Docket Number | 45618. |
| Parties | BAND v. REINKE. |
| Court | United States State Supreme Court of Iowa |
Appeal from District Court, Franklin County; O. J. Henderson, Judge.
Action at law by employee against employer for damages from injuries received in automobile accident. Defendant pleaded general denial, contributory negligence and res judicata. Opinion states the facts. From judgment for plaintiff, defendant appeals.
Affirmed.
Leming & Hobson, of Hampton, and Putnam, Putnam, Fillmore & Putnam of Des Moines, for appellant.
Uhlenhopp & Uhlenhopp, of Hampton, for appellee.
This is an action at law by Minnie Band against Hannah Reinke for damages on account of injuries received by plaintiff, on April 14, 1938, in the overturning of an automobile driven by defendant and in which plaintiff was riding. Plaintiff, a sister of defendant, alleged she was in the employ of defendant as a domestic servant; that as a part of said service she was required to ride in said automobile at said time and that her injuries resulted from the negligence of defendant in operating the same. Plaintiff did not plead freedom from contributory negligence. Defendant's answer was, in substance, a general denial and an allegation that plaintiff was contributorily negligent to a substantial degree contributing to the cause of the accident. Defendant also pleaded that plaintiff was barred and estopped from maintaining said action by an adverse adjudication upon the merits in a former suit brought by plaintiff on account of said injuries received in said accident, against W. A Reinke, as the owner of the automobile in question, in which former action the question of defendant's negligence and plaintiff's freedom from contributory negligence was adjudicated against the plaintiff. In the former case there was a general verdict for the defendant, and the judgment thereon was affirmed upon appeal. Band v. Reinke, 227 Iowa 458, 288 N.W. 629. That decision details more fully the circumstances of the accident. Perhaps it should be here noted that it was admitted the car was being operated with the consent of W. A. Reinke at the time in question.
Trial to a jury in the instant case resulted in verdict and judgment for plaintiff in the sum of $3,000 and defendant has appealed. The errors assigned relate (1) to the refusal of the court to sustain appellant's plea of res judicata, and (2) to instructions given the jury that the burden was upon the defendant to prove the contributory negligence of appellee and that, if proven, its effect would be only to mitigate damages. We will first consider the latter group of assigned errors.
Section 11210, Code of Iowa 1939, provides as follows:
Under the instructions of the court in this case the jury, as a prerequisite to further consideration of the case, was first required to find, and necessarily did find, that appellee had established she was in the employ of appellant as a household servant and that her injuries were received in the course of said employment. Following this were instructions relative to appellant's plea that appellee was guilty of contributory negligence, which instructions accorded with the provisions of Code, Section 11210.
One complaint at this point is that said statute is applicable only to cases involving injuries received by an employee as a result of negligence of the employer arising from a violation of a special duty owed the employee because of the relationship existing at the time of the injury and that the statute is not applicable to negligence cases generally. Appellant also asserts the statute is here inapplicable because the negligence charged in this case was based upon defendant's alleged violation of her common-law duty to exercise ordinary care in operating said automobile rather than the special duty imposed by statute in employee-employer cases.
We think the statute includes cases of this nature. It does not set up new standards of care required to be exercised by employers toward employees. Its effect is to enlarge the right to recover by changing the burden of proof and effect of proof of contributory negligence of employees in actions against their employers for damages caused by the employer's negligence. The negligence of the employer referred to in the statute is not limited to acts or omissions of any particular character. The test is whether the negligence causing the damages grows out of the employer-employee relationship. No holdings to the contrary have been called to our attention.
Appellee was not required to specifically plead the provisions of the statute to bring the case within its purview. It was essential only that the pleadings aver (and the proof establish) facts sufficient to render the statute applicable. Such factual matters having been averred the applicability of the statute thereto was merely a conclusion which it was unnecessary to plead. Nor did appellee's failure to plead freedom from contributory negligence constitute a defect. In cases to which the statute is pertinent a plaintiff need not plead freedom from contributory negligence and a defendant may plead and prove contributory negligence only in mitigation of damages. Morse v. Century Cab Co., 230 Iowa 443, 297 N.W. 877; Oestereich v. Leslie, 212 Iowa 105, 113, 234 N.W. 229, 233....
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