Blunt v. Brown

• Decision Date: 23 December 1963
• Docket Number: Civ. No. 2-569,2-570.
• Citation: 225 F. Supp. 326
• Parties: Marjorie E. BLUNT, Plaintiff, v. Joseph Dale BROWN and Leo Franklin Brown, Defendants. Marjorie E. BLUNT, Parent and Natural Guardian for Patricia Blunt, a Minor and Incompetent Child, Plaintiff, v. Joseph Dale BROWN and Leo Franklin Brown, Defendants.
• Court: U.S. District Court — Southern District of Iowa

225 F. Supp. 326

Marjorie E. BLUNT, Plaintiff, v. Joseph Dale BROWN and Leo Franklin Brown, Defendants.

Marjorie E. BLUNT, Parent and Natural Guardian for Patricia Blunt, a Minor and Incompetent Child, Plaintiff, v. Joseph Dale BROWN and Leo Franklin Brown, Defendants.

Civ. Nos. 2-569, 2-570.

United States District Court S. D. Iowa, Davenport Division.

December 23, 1963.

George A. Goebel, of Kopf & Christiansen, Davenport, Iowa, for Howard Blunt, Jr.

Robert V. P. Waterman, of Lane & Waterman, Davenport, Iowa, for Joseph Dale Brown and Leo Franklin Brown.

STEPHENSON, Chief Judge.

This matter is before the Court on the motions of defendants, Joseph Dale Brown and Leo Franklin Brown, for leave to make Howard Blunt, Jr. a third party defendant in the above causes pursuant to Rule 14 of the Federal Rules of Civil Procedure. The motions in each of the causes raise practically identical issues and for this reason they will be treated jointly.

In this action the plaintiffs, Marjorie E. Blunt and Patricia Blunt by her parent and guardian, Marjorie E. Blunt, seek damages for personal injuries arising out of an automobile accident occurring January 8, 1963. The plaintiffs were riding as passengers in an automobile owned and operated by Howard Blunt, Jr., which collided with an automobile owned by the defendant, Leo Franklin Brown and driven by defendant, Joseph Dale Brown.

In the proposed third-party complaint, the defendants allege their right to indemnity from Howard Blunt, Jr. for any damages they might be compelled to pay to the plaintiffs, and alternatively, they seek equitable contribution from Howard Blunt, Jr. The defendants contend that the presence of Howard Blunt, Jr., as a third-party defendant, should be required so that the rights and liabilities of the various parties can be disposed of in one action, thereby avoiding multiple suits and duplication of expenses.

Howard Blunt, Jr., in resistance to the motion to bring in third-party defendant, asserts that the defendants can have no indemnity or contribution in the absence of a common liability to the injured plaintiffs. Blunt further asserts that certain releases entered into by himself and the defendants have released him from all claims which the defendants might have against him including the right to seek contribution and indemnity.

The Court will consider Howard Blunt, Jr.'s defenses in the order asserted by him in his resistance. First of all, Blunt contends that because there is no actionable negligence as between the plaintiffs and himself, there is absent an essential element of contribution or indemnity, i. e., common liability. The Court is in agreement with this contention.

Rule 14, Federal Rules of Civil Procedure, upon which the defendants premise their motion states that "A defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." While Rule 14 provides this Court with the necessary procedural authorization for the joinder of a third-party defendant who is or may be liable to the movant, the question of whether the movant is entitled to contribution or indemnity is an issue of substantive law governed by the law applicable in the state where the tort occurred. Chicago & Northwestern Ry. Co. v. Chicago R. I. & P. R. Co., 179 F.Supp. 33, 39 (N.D. Iowa, 1959); Gentry v. Jett, 173 F.Supp. 722 (W.D.Ark., 1959), aff'd, 273 F.2d 388 (8 Cir., 1960); see also 60 A.L.R.2d 1370. Because the accident occurred in Iowa its law is determinative. Looking then to Iowa law it appears, that while the law is only of recent vintage, it is now well established that when the active but unintentional negligence of two parties concurs to injure a third party, the two tort-feasors may have a right to contribution against each other. Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956). The doctrine of indemnity is also firmly fixed in Iowa law. Blackford v. Sioux City Dressed Pork, Inc., 118 N.W. 2d 559 (Iowa 1962). For a discussion of the Iowa rules as to indemnity and contribution see, Chicago & N. W. Ry Co. v. Chicago R. I. & P. R. Co., 179 F.Supp. 33, 57-62, (N.D.Iowa, 1959). The right to indemnity or contribution presupposes actionable negligence of both parties to an injured third-party. Allied Mutual Casualty Co. v. Long, 252 Iowa 829, 107 N.W.2d 682 (1961); Hawkeye-Security Insurance Co. v. Lowe Construction Co., 251 Iowa 27, 99 N.W.2d 421 (1959); Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23 (1956). The right to contribution among concurrent tort-feasors is based upon a common liability to a third party. Allied Mutual Casualty Co. v. Long, supra.

This then brings us to the heart of the issue now before the Court. Did the present defendants and the proposed third-party defendant have a common liability to the injured plaintiffs? Was there actionable negligence upon which the plaintiffs could rely against either the present defendants or against Blunt?

The Court finds that several legal principles present in this case are destructive of the necessary common liability. The first of these principles to be regarded is the doctrine of "marital immunity." The pleadings before the Court reveal that the proposed third-party defendant is the husband of the plaintiff, Marjorie E. Blunt. It was the rule at common law and seemingly still the law in Iowa that a wife cannot maintain a suit or obtain judgment against her husband for damages growing out of a tort committed by him upon her. Aldrich v. Tracy, 222 Iowa 84, 269 N.W. 30 (1936); In Re Estate of Dalmage, 203 Iowa 231, 212 N.W. 553 (1927); Maine v. Maine & Sons Co., 198 Iowa 1278, 201 N.W. 20 (1924); Peters v. Peters, 42 Iowa 182 (1875); See also 4 Drake Law Review 51. The defendants in argument upon their motion have suggested that certain Iowa statutes have abrogated the common law in Iowa. It is true that § 613.11 Iowa Code I.C.A., has been amended once (in 1941) since the latest pronouncement of the Iowa position by the Iowa Supreme Court. However, the language used by the Iowa legislature in that amendment is not such as to positively indicate that the veil of marital immunity has been removed in Iowa. The Iowa Supreme Court has on several occasions construed prior statutes in connection with the common law rule of immunity and each time the immunity doctrine has withstood the test. See Aldrich v. Tracy, 222 Iowa 84, 269 N.W. 30 (1936). This Court deems it to be a proper assumption that it is still the law of Iowa that a spouse has no right of action against the other to recover damages for personal injuries caused by the other even though the "trend" in other jurisdictions may be one advocating the removal of such a disability. See Annotation, 43 A.L.R.2d 632.

The other plaintiff in this action is the daughter of the proposed third-party defendant, Howard Blunt, Jr. Thus, in determining whether there would be actionable negligence, as a basis for contribution, between this injured plaintiff and the proposed third-party defendant, the Court is troubled by the legal question of whether in Iowa an unemancipated minor child can maintain an action against his parent to recover damages for negligence. It appears that the question has not been determined in Iowa.¹ Cody v. J. A. Dodds & Sons, 252 Iowa 1394, 110 N.W.2d 255 (1961). Were it not for the Iowa Guest Statute, § 321.494, Code of Iowa, 1962, I.C.A., it would be necessary to predict what the Iowa position is in regard to any disability a minor might have in a suit against his parent so that the "Common liability" element of contribution might be resolved. In view of the position taken hereinafter in regard to the Iowa Guest Statute the Court finds it unnecessary to decide the question of parent-child immunity.

Under the Iowa Guest Statute, § 321.494, the liability of an operator of a motor vehicle to a person riding in it as a guest, is limited to damage caused by the driver's being under the influence of intoxicating liquor or by his reckless operation of the vehicle. Winter v. Moore, 121 N.W.2d 82 (Iowa 1963). Nothing appears in the record as...