Bolton v. Ziegler

• Decision Date: 31 March 1953
• Docket Number: Civ. No. 438 and 439.
• Citation: 111 F. Supp. 516
• Parties: BOLTON v. ZIEGLER (two cases).
• Court: U.S. District Court — Northern District of Iowa

111 F. Supp. 516

BOLTON v. ZIEGLER (two cases).

Civ. Nos. 438 and 439.

United States District Court N. D. Iowa, Cedar Rapids Division.

March 31, 1953.

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William M. Dallas and David H. Foster, of Donnelly, Lynch, Lynch & Dallas, all of Cedar Rapids, Iowa, for the plaintiffs.

Harry Wilmarth and Ralph W. Gearhart, of Elliott, Shuttleworth & Ingersoll, all of Cedar Rapids, Iowa, for the defendant.

GRAVEN, District Judge.

On October 6th, 1951, on United States Highway No. 30 in Cedar County, Iowa, in the country, a collision occurred between an automobile owned by E. W. Bolton and an automobile owned and operated by Pearl Ziegler and another collision occurred between the Bolton automobile and a semi-trailer truck owned by the Denver-Chicago Trucking Company. The collisions occurred in quick succession. The parties are in dispute as to which collision occurred first. The Bolton automobile at the time was being driven by Fannie Bolton, the wife of E. W. Bolton. The plaintiff, E. W. Bolton, was riding in the automobile as a passenger at the time. Immediately preceding the collisions the Bolton automobile and the Ziegler automobile were proceeding westerly on the highway with the Bolton automobile in advance of the Ziegler automobile and two semi-trailer trucks were proceeding easterly on the highway. The second of the trucks was owned by the Denver-Chicago Trucking Company and was being operated by its employee, Joseph DeMoura. E. W. Bolton and Fannie Bolton sustained serious personal injuries as a result of the collisions. E. W. Bolton and Fannie Bolton are citizens of the State of Iowa. Pearl Ziegler is a citizen of the State of Illinois. In September, 1952, E. W. Bolton and Fannie Bolton brought the present actions against Pearl Ziegler in the District Court of Iowa in and for Cedar County. Service of original notice in the two cases was made upon Pearl Ziegler under the provisions of the Iowa Non-Resident Motorists Service Act. Sections 321.498 et seq., Code of Iowa 1950, I.C.A. The defendant, Pearl Ziegler, removed the two cases to this court on the ground of diversity of citizenship. In Case No. 438 the plaintiff, E. W. Bolton, asks damages in the amount of $35,000 and in Case No. 439 Fannie Bolton asks damages in the amount of $20,316.51 for the personal injuries sustained by them. The plaintiff in each case charges the defendant Ziegler with non-observance of the law of Iowa relating to the use of the highways.

The liability insurer of the Denver-Chicago Trucking Company was the Underwriters at Lloyds. On July 2d, 1952, E. W. Bolton executed the following document:

"Loan Receipt and Covenant not to Sue

"Whereas, E. W. Bolton, of Cedar County, Iowa, received injuries to his person as a result of a collision occurring on or about the 6th day of October, 1951, on Highway 30 at a point about one mile East of Mechanicsville, Iowa, between a car owned by him and operated by his wife, a car owned and operated by Pearl Ziegler, and a truck owned by Denver Chicago Trucking Company and operated by its employee, Joseph DeMoura, and

"Whereas, the said E. W. Bolton asserted claims against the said Pearl Ziegler and Denver Chicago Trucking Company for the damages so sustained by him, and

"Whereas, the Denver Chicago Trucking Company and Joseph DeMoura have denied liability upon said claim and have asserted that said injuries and damages were due to the carelessness and negligence of the said Pearl Ziegler in the operation of her car so as to crash into the rear of the Bolton car and force it across the highway and into the path of the truck of the Denver Chicago Trucking Company, and

"Whereas, the Underwriters at Lloyds, insurer of the liability of the Denver Chicago Trucking Company, if any, for the damages sustained by the said E. W. Bolton as a result of said accident, has proposed to advance the sum hereinafter set forth to the said E. W. Bolton as a loan, re-payable only upon the conditions hereinafter set forth, in consideration of the covenants of the said E. W. Bolton not to sue the said Denver Chicago Trucking Company, any of its agents or employees, or Joseph DeMoura, or any other person, firm, or corporation legally liable for any alleged negligence of the said Joseph DeMoura upon any claim or claims or cause of action which he now has or could now or hereafter assert for damages sustained to his person as a result of the said collision occurring on or about the 6th day of October, 1951, and

"Whereas, the said Pearl Ziegler is insured by the Union Auto Indemnity Company, of Bloomington, Illinois, which company is liable for the damage resulting from the negligence of the said Pearl Ziegler, and

"Whereas, the said E. W. Bolton sustained damage largely in excess of the sum to be advanced as aforesaid and it is contemplated that the recovery which will be made from Pearl Ziegler and those legally liable for her negligence will be greatly in excess of the amount so advanced, and

"Whereas, the said E. W. Bolton is desirous of obtaining the advance of said funds upon said terms and conditions,

"Now, therefore, in consideration of the sum of Nine Thousand & 00/100 Dollars ($9,000.00) this day received from Underwriters at Lloyds as a loan re-payable without interest only in the event and to the extent of any net recovery the said E. W. Bolton may obtain upon any claim or cause of action which he has for injuries and damages sustained to his person arising and growing out of said collision occurring on or about the 6th day of October, 1951, against Pearl Ziegler, or any other person, firm, or corporation except Denver Chicago Trucking Company, its agents or employees, Joseph DeMoura, or any person, firm, or corporation liable for the negligence of the said Joseph DeMoura or Denver Chicago Trucking Company.

"In consideration of the loan and advance of said sum the said E. W. Bolton hereby agrees:

"1. That he will not institute or maintain any action or proceedings of any kind or character against the Denver Chicago Trucking Company, any of its agents or employees, Joseph DeMoura, or any other person, firm, or corporation legally liable for any negligence of the said Denver Chicago Trucking Company or Joseph DeMoura for the recovery of any damages to his person sustained by him arising or growing out of the said collision occurring on or about the 6th day of October, 1951, between the car owned by him and operated by his wife, a car owned and operated by the said Pearl Ziegler, and the truck owned by the said Denver Chicago Trucking Company and operated by Joseph DeMoura. In so agreeing not to sue the persons aforesaid the said E. W. Bolton does expressly reserve and retain each and every claim and cause of action which he may have or which he could assert against the said Pearl Ziegler or any other person, firm, or corporation except such as he has expressly herein covenanted not to sue.

"2. That from any recovery which he may obtain upon any claim for personal injuries against any person, firm, or corporation with respect to whom rights are reserved under the terms hereof for damages received by him as a result of, or arising and growing out of, the said collision occurring on or about the 6th day of October, 1951, the said E. W. Bolton will, after first deducting any and all expenses in any way connected with the making of said claim, or the bringing or prosecuting of any action thereon, re-pay to the said Underwriters at Lloyds the amount so advanced and loaned. It is understood and agreed that the obligation of the said E. W. Bolton to re-pay said sum of money is expressly limited to the net amounts of any sums recovered on said claim after first paying any and all expenses connected therewith and that under no circumstances or conditions is the said E. W. Bolton to have any obligation to re-pay any sum whatsoever except from the net funds received by him upon his claims as aforesaid.

"Dated this 2nd day of July, 1952.

"This is delivered on condition that check for $9,000.00 shall be delivered to me on or before July 10, 1952.

------------------- /s/ E. W. Bolton ------------------- "Witness /s/ William M. Dallas"

On July 2d, 1952, Fannie Bolton executed a document which was substantially similar. E. W. Bolton received the sum of $9,000 and Fannie Bolton received the sum of $3,000 as specified in the respective instruments.

The parties by pre-trial motions have presented and submitted to the Court the matters hereinafter referred to. In her answer in both cases the defendant, Pearl Ziegler, claims that she was not guilty of any negligence and that the collisions were occasioned solely by the negligence of the Denver-Chicago Trucking Company in failing to observe the law of Iowa relating to the use of the highways. It is indicated that the defendant, Pearl Ziegler, has brought on action against the Denver-Chicago Trucking Company in state court for damages claimed to have been sustained by her as a result of the mishap in question, which is still pending. It is the claim of the defendant Ziegler that if she was a tort-feasor then she and the Denver-Chicago Trucking Company were joint tort-feasors as to the plaintiffs and as to each other. It is also her claim that the Denver-Chicago Trucking Company and its liability insurer by means of the documents entitled "Loan Receipt and Covenant Not to Sue" are attempting to secure "contribution or indemnity" from her "contrary to the public policy and law of Iowa." She also makes a number of allegations, some of which are in the alternative. She alleges that the Denver-Chicago Trucking Company and its insurer are indispensable or necessary parties to these actions and moves that they be joined as parties or in the alternative that the actions be dismissed. She further alleges that the Denver-Chicago Trucking Company and its liability insurer are the real parties in interest and moves that they be made parties plaintiff, or in the...