Best v. Yerkes, No. 48973

CourtUnited States State Supreme Court of Iowa
Writing for the CourtTHOMPSON
Citation60 A.L.R.2d 1354,77 N.W.2d 23,247 Iowa 800
Parties, 60 A.L.R.2d 1354 William J. BEST, Plaintiff-Appellee, v. C. Harland YERKES, Appellant, Denver M. Cross, Third Party Defendant, Appellee.
Docket NumberNo. 48973
Decision Date09 May 1956

Page 23

77 N.W.2d 23
247 Iowa 800, 60 A.L.R.2d 1354
William J. BEST, Plaintiff-Appellee,
v.
C. Harland YERKES, Appellant,
Denver M. Cross, Third Party Defendant, Appellee.
No. 48973.
Supreme Court of Iowa.
May 9, 1956.

Page 25

[247 Iowa 802] Boardman, Cartwright & Druker, Marshalltown, for appellant.

Haupert & Robertson, Marshalltown, for third-party defendant-appellee.

L. E. McGinnis, Marshalltown, for appellee.

THOMPSON, Justice.

On July 13, 1953, a collision occurred between a truck operated by the plaintiff and an automobile driven by the defendant Yerkes. Plaintiff's vehicle was proceeding east on Highway 30 about one mile west of the junction of Highways 30 and 14, in Marshall County. The defendant was going west, following a truck driven by the proposed third party defendant, Cross. For the sake of brevity and to avoid confusion, the plaintiff will hereafter be referred to as Best; the defendant as Yerkes; and the third party defendant as Cross.

The matter was determined upon the pleadings; but it seems to be tacitly conceded, and we shall so assume for the purpose of this discussion, that at the time of the collision Yerkes was on his wrong, or left hand side of the road. On July 11, 1955, plaintiff filed his action against Yerkes, alleging damages in the total sum of $10,748.70. The specifications of negligence against Yerkes may be summarized as these: Driving at an excessive speed under existing conditions; driving at a speed greater than that which would have permitted him to stop his vehicle within the assured clear distance ahead; failing to maintain a proper lookout; and failing to yield one-half the traveled way when meeting plaintiff's vehicle.

Yerkes answered, in effect denying generally, and specifically alleging that the collision was proximately caused by the negligence of Cross. On July 13, 1955, Yerkes filed his motion supported by affidavit, the substance of the motion being this:

'That Denver M. Cross be brought into this action as a party defendant, on the grounds that defendant C. Harland Yerkes will, if held liable herein, he entitled to a right of action against said Denver M. Cross for any damages which may be adjudged against him, to the end that the rights of all concerned may be determined in one action, as provided by Rule 33(b), Iowa Rules of Civil Procedure [I.C.A.].'

[247 Iowa 803] On the same date that the motion was filed, the Marshall District Court, through Judge M. C. Farber, granted the motion ex parte. On July 20, 1955, Yerkes filed his cross-petition against Cross. He alleged that on July 13, 1953, about 9:45 a.m., Cross was the owner and operator of a motor truck which he was driving west on Highway 30; that Yerkes was proceeding carefully behind Cross' truck. That as Cross' truck was about to meet the east-bound vehicle of Best, Cross suddenly and without any signal or warning slowed the speed of his truck so as to bring it to a stop or 'near stop'. That the Cross truck was not equipped with an operating brake light for signaling traffic to its rear. That upon the sudden slowing of the Cross truck, Yerkes was faced with an emergency and to avoid colliding with it applied the brakes of his automobile and attempted to guide his car to avoid a collision, but was unable to do so and collided with the Best truck. It is alleged both Best's and Yerkes' vehicles were severely damaged and Best 'may have sustained bodily injuries to an extent not known' to Yerkes. The commencement of an action against Yerkes by Best alleging Yerkes' negligence is also pleaded.

After pleading his own freedom from contributory negligence, Yerkes in his cross-petition makes these specifications of negligence against Cross: That he stopped or suddenly decreased the speed of his truck without giving an appropriate signal; he failed to have his truck equipped with a proper signal device to give notice of intent

Page 26

to stop; the brake light on the rear of the Cross truck was defective; knowing of the approaching Best truck, Cross entrapped Yerkes by slowing the speed of his truck without giving an adequate signal, thereby causing an emergency; Cross operated his truck at a speed which was less than reasonable and proper in view of existing conditions.

We summarize the prayer of Yerkes' cross-petition: That it be found Yerkes was in no manner at fault in the collision with Best; that he have judgment against Cross for the damage to his automobile in the sum of $849.13; that if it be adjudged Yerkes was in any manner or amount liable to Best, Yerkes have judgment over against Cross for any amount recovered by Best against Yerkes, or in the alternative that he have a right of contribution against Cross.

[247 Iowa 804] Thereafter Cross filed his motion to set aside the order which permitted him to be brought in as a third-party defendant, alleging: That said order was made ex parte and without notice to Cross; that Rule 33(b) has no application to the facts in the case, there being no right of action over against Cross even if Best should recover a judgment against Yerkes; there is no provision in law for the granting of the relief demanded in the cross-petition.

It should be noted that the plaintiff Best has taken no part in the proceedings relative to the third-party defendant procedure, the contest here being entirely between Yerkes and Cross. Nor is the ruling of the trial court that since the original order bringing in the third-party was made ex parte it was not binding upon Cross and so Cross' motion to set it aside should be considered as if he had resisted the motion before it was granted in any way challenged. The court set aside the order making Cross a defendant, and it is this order that is attacked here, leave to appeal having been granted.

The appellant Yerkes urges that since the motion to set aside the order was also labelled a 'motion to dismiss' and challenged the sufficiency of the facts set out in the cross-petition, such facts must be taken as true. We think this does not aid him. The court did not grant the motion to set aside because of insufficiency of the pleaded facts, but because it thought its determination involved the sound judicial discretion of the court. It said:

'Defendant's action on his counter claim (cross-petition) involves many elements wholly foreign to the issues between plaintiff and defendant. The status of the defendant on the issue of negligence in the main case and contributory negligence in the cross petition would be confusing to a jury. The cross-petition prays for judgment for damages to the defendant's car, an issue having no possible connection with the original case. These, and other elements of confusion would be created by trying the two cases together.' The court clearly concluded it was within its proper discretion in setting aside the original ex parte order permitting Yerkes to bring Cross into the case as a third-party defendant, and it placed its ruling on that ground.

[247 Iowa 805] I. The principal contention between the opposing parties here concerns the question of the right of indemnity or contribution between joint tort-feasors. The appellee Cross supports the ruling of the court by urging that in any event under the case as made by the pleadings Yerkes could not recover from Cross, because if Cross was guilty of any negligence it would be at the most no more than negligence which concurred with that of Yerkes in causing the injuries to Best. Of course, if Yerkes' defense to Best's claim, that the negligence of Cross was the sole proximate cause of the collision, should be sustained upon a trial, there would be no right of 'recovery over' against Cross because Yerkes would not be indebted to Best. But if Yerkes were held guilty of some negligence and so required to respond in damages to Best, then the appellee thinks that Yerkes and Cross would be at the most no more than joint tort-feasors, and neither could recover from the other.

The right to indemnity, or contribution, presupposes actionable negligence of

Page 27

both parties, toward a third party. 20 R.C.L. 138. It is said in City of Weatherford Water, Light & Ice Co. v. Veit, Tex.Civ.App., 196 S.W. 986, 993: 'In every case of the kind it must be presupposed that as to the third party injured both defendants have been guilty of actionable negligence.' So here, Yerkes can have no indemnity or contribution unless both he and Cross were guilty of actionable negligence toward Best. It remains to be determined whether if they should be so adjudged, there would be a right of indemnity or contribution.

We have many times expressed the general rule that there can be no contribution between joint tort-feasors. But we have not squarely met and decided the precise question with which the instant case confronts us. It is this: Assuming that active but unintentional negligence of two parties concurs to injure a third party, do the two tort-feasors have a right of contribution against each other? The origin of the rule that such contribution may not be had is apparently in the English case of Merryweather v. Nixon, 8 T.R. 186. The logic behind it was said to be that where two persons are each guilty of an intentional wrong toward a third party, and one is compelled to bear the whole or an unequal share of the burden of recompense, the law will [247 Iowa 806] leave them where it finds them; it will not interfere to settle controversies between such wrongdoers. As the law has developed, the rule has been generally, although not universally, applied to all joint tort-feasors; not only to those guilty of moral turpitude, but to those whose offenses are merely malum prohibitum. But there are many distinctions and exceptions, and it is fair to say that the law, as laws have a tendency to do, has become considerably confused.

While stating the general rule, this court has recognized and applied many exceptions. Thus, in cases of derivative liability, where a...

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87 practice notes
  • Northwest Airlines, Inc v. Transport Workers Union of America, AFL-CIO
    • United States
    • United States Supreme Court
    • April 20, 1981
    ...F.2d 219 (1942); Skinner v. Reed-Prentice Div. Package Machinery Co., 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437 (1977); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956); Quatray v. Wicker, 178 La. 289, 151 So. 208 (1933); Bedell v. Reagan, 159 Me. 292, 192 A.2d 24 (1963); Underwriters a......
  • Owen Equipment and Erection Company v. Kroger, No. 77-677
    • United States
    • United States Supreme Court
    • June 21, 1978
    ...common-law right of ontribution among joint tortfeasors. See Dairyland Ins. Co. v. Mumert, 212 N.W.2d 436, 438 (Iowa); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23. The petitioner has never challenged the propriety of the third-party complaint as such. 4. Judgment was entered pursuant to Fed.......
  • Thornberry v. State Bd. of Regents, No. 54322
    • United States
    • United States State Supreme Court of Iowa
    • April 9, 1971
    ...In re Estate of Springer, 252 Iowa 1220, 1236, 110 N.W.2d 380; Jacobsen v. Gamber, 249 Iowa 99, 101--102, 86 N.W.2d 147; Best v. Yerkes, 247 Iowa 800, 810, 77 N.W.2d 23. See also Perry v. Iowa State Highway Commission, 180 N.W.2d 417, 423 (Iowa). Cf. Cogley v. HyVee Food Stores, Inc., 257 I......
  • Duncan v. Beres, Docket No. 1797
    • United States
    • Court of Appeal of Michigan (US)
    • December 31, 1968
    ...24 In a number of jurisdictions the rule is not applied to deny contribution among negligent tort-feasors. See Best v. Yerkes (1956), 247 Iowa 800, 77 N.W.2d 23, 60 A.L.R.2d 1354, and George's Radio v. Capitol Transit Co. (1942), 75 U.S.App.D.C. 187, 126 F.2d 219, and cases therein collecte......
  • Request a trial to view additional results
86 cases
  • Northwest Airlines, Inc v. Transport Workers Union of America, AFL-CIO
    • United States
    • United States Supreme Court
    • April 20, 1981
    ...F.2d 219 (1942); Skinner v. Reed-Prentice Div. Package Machinery Co., 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437 (1977); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956); Quatray v. Wicker, 178 La. 289, 151 So. 208 (1933); Bedell v. Reagan, 159 Me. 292, 192 A.2d 24 (1963); Underwriters a......
  • Owen Equipment and Erection Company v. Kroger, No. 77-677
    • United States
    • United States Supreme Court
    • June 21, 1978
    ...common-law right of ontribution among joint tortfeasors. See Dairyland Ins. Co. v. Mumert, 212 N.W.2d 436, 438 (Iowa); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23. The petitioner has never challenged the propriety of the third-party complaint as such. 4. Judgment was entered pursuant to Fed.......
  • Thornberry v. State Bd. of Regents, No. 54322
    • United States
    • United States State Supreme Court of Iowa
    • April 9, 1971
    ...In re Estate of Springer, 252 Iowa 1220, 1236, 110 N.W.2d 380; Jacobsen v. Gamber, 249 Iowa 99, 101--102, 86 N.W.2d 147; Best v. Yerkes, 247 Iowa 800, 810, 77 N.W.2d 23. See also Perry v. Iowa State Highway Commission, 180 N.W.2d 417, 423 (Iowa). Cf. Cogley v. HyVee Food Stores, Inc., 257 I......
  • Duncan v. Beres, Docket No. 1797
    • United States
    • Court of Appeal of Michigan (US)
    • December 31, 1968
    ...24 In a number of jurisdictions the rule is not applied to deny contribution among negligent tort-feasors. See Best v. Yerkes (1956), 247 Iowa 800, 77 N.W.2d 23, 60 A.L.R.2d 1354, and George's Radio v. Capitol Transit Co. (1942), 75 U.S.App.D.C. 187, 126 F.2d 219, and cases therein collecte......
  • Request a trial to view additional results
1 books & journal articles
  • Of distributive justice and economic efficiency: An integrated theory of the common law
    • United States
    • Research in Law and Economics (vol. 19)
    • September 6, 2000
    ...C. Cir. 1949); Nevada, see Weiner v. United Air Lines, 216 F. Supp. 701 (S. D.Cal. 1962) (applying Nevada law); Iowa, see Best v. Yerkes, 77 N.W.2d 23 (Iowa, 1956); Louisiana, see Quatray v. Wicker, 178 La. 289 (1933)(superseded on other grounds by statute as recognized in Cole v. Celotex C......

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