Brandt v. Olson

• Decision Date: 31 December 1959
• Docket Number: Civ. No. 856.
• Citation: 179 F. Supp. 363
• Parties: Delores BRANDT, Plaintiff, v. Howard Bell OLSON and Fred Carlson Company, Inc., sometimes known as Fred Carlson Company, Defendants and Third-Party Plaintiffs (Walter J. Galus, Third-Party Defendant).
• Court: U.S. District Court — Northern District of Iowa

179 F. Supp. 363

Delores BRANDT, Plaintiff, v.Howard Bell OLSON and Fred Carlson Company, Inc., sometimes known as Fred Carlson Company, Defendants and Third-Party Plaintiffs (Walter J. Galus, Third-Party Defendant).

Civ. No. 856.

United States District Court N. D. Iowa, E. D.

December 31, 1959.

Reed, Beers, Beers & Holmes, Waterloo, Iowa, Henry J. Brandt and Mitchell Kilanowski, Chicago, Ill., for plaintiff.

George Lindeman and Bruce M. Snell, Jr.(of Beecher, Buckmaster, Beecher & Lindeman), Waterloo, Iowa, for defendants and third-partyplaintiffs.

Leo J. Cohrt(of Swisher, Cohrt, Swisher & Finch), Waterloo, Iowa, for third-party defendant.

GRAVEN, District Judge.

In this motor vehicle collision case there has been submitted to the Court a motion of the third-party defendant which raises questions as to jurisdiction, venue, indemnity or contribution, and the scope of the Iowa Nonresident Motorist Service Act.

It appears that on August 31, 1956, a collision occurred on an Iowa highway between an automobile in which the plaintiff was riding and a road grader owned by the defendantFred Carlson Company and operated by its employee, the defendantHoward Bell Olson.The automobile in which the plaintiff was riding was being operated by the third-party defendant, one Galus.The plaintiff brought the present action in this Court against the defendantsFred Carlson Company and Howard Bell Olson to recover for damage to her automobile and personal injuries sustained by her as a result of the collision.

Jurisdiction is based upon diversity of citizenship and the requisite amount involved in the controversy.The plaintiff is a citizen and resident of the State of Illinois.The defendantFred Carlson Company is an Iowa corporation with its principal place of business in Iowa.The defendantHoward Bell Olson is a citizen and resident of the State of Texas.The third-party defendant is a citizen and resident of the State of Missouri.The plaintiff seeks to recover the sum of $100,000 from the defendants.The claim of the defendants for indemnity or contribution is, therefore, in excess of $10,000, exclusive of interest and costs.

Rule 14(a) of the Federal Rules of Civil Procedure,28 U.S.C.A., provides for service by a defendant of "a summons and complaint 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. * * *" The purpose of Rule 14 is to avoid circuity of action and multiplicity of suits.Waylander-Peterson Co. v. Great Northern Ry. Co., 8 Cir., 1953, 201 F.2d 408, 415, 37 A.L.R.2d 1399.In the case of United States v. Acord, 10 Cir., 1954, 209 F.2d 709, at page 712, the Court stated:

"The purpose of Rule 14 was to accomplish in one proceeding the adjudication of the rights of all persons concerned in the controversy and to prevent the necessity of trying several related claims in different lawsuits. * * *"

Rule 33 of the Iowa Rules of Civil Procedure,58 I.C.A., is analogous to Rule 14 of the Federal Rules of Civil Procedure.SeeCook, Iowa Rules of Civil Procedure, Revised Edition(1951), p. 230.

Pursuant to leave of Court, the defendants filed a third-party complaint against the third-party defendant under Rule 14(a).Service of summons was made upon the third-party defendant under the Iowa Nonresident Motorist Service Act, Sections 321.498-321.512, Code of Iowa 1958, I.C.A.

It appears that all of the States and the District of Columbia have nonresident motorist service acts.SeeKnoop v. Anderson, D.C.N.D.Iowa, 1947, 71 F. Supp. 832.Those acts provide that the operator of a motor vehicle, by using the highways of the particular state, shall be deemed by such use to constitute a designated public officer in the state as his agent or attorney for the service of process in actions growing out of such use.

The particular portion of the Iowa Nonresident Motorist Service Act here involved is Section 321.498, which provides as follows:

"The acceptance by any nonresident of this state of the privileges extended by the laws of this state to nonresident operators or owners of operating a motor vehicle, or having the same operated, within this state shall be deemed:

"1.An agreement by him that he shall be subject to the jurisdiction of the district court of this state over all civil actions and proceedings against him for damages to person or property growing or arising out of such use and operation(emphasis supplied), and

"2.An appointment by such nonresident of the commissioner of the public safety department of this state as his lawful attorney upon whom may be served all original notices of suit pertaining to such actions and proceedings, and

"3.An agreement by such nonresident that any original notice of suit so served shall be of the same legal force and validity as if personally served on him in this state."

Rule 4(d)(7) of the Federal Rules of Civil Procedure provides, in part, that a summons and complaint may be served in the manner prescribed by the law of the state in which service is made.When an action is brought in federal court and a third-party claim is asserted therein which is within the scope of the nonresident motorist service act of the state in which the court is sitting, service of the third-party summons may properly be made under Rule 4(d)(7) and the court acquires jurisdiction of the third-party defendant.SeeBerkey v. Rockwell Spring & Axle Co., D.C.1958, 162 F.Supp. 493;Pasternack v. Dalo, D.C.1955, 17 F.R.D. 420;Weisler v. Matta, D.C.1951, 95 F. Supp. 152;Sussan v. Strasser, D.C.1941, 36 F.Supp. 266;3 Moore's Federal Practice, 2d ed. 1948, par. 4.18.Rule 4(f), which declares that "All process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held and, when a statute of the United States so provides, beyond the territorial limits of that state. * * *" is not a limitation upon Rule 4(d)(7).Giffin v. Ensign, 3 Cir., 1956, 234 F.2d 307;Holbrook v. Cafiero, D.C.1955, 18 F.R.D. 218;Pasternack v. Dalo, supra.But cf. concurring opinion of Maris, J., in McCoy v. Siler, 3 Cir., 1953, 205 F.2d 498, 501.

The third-party defendant asserts that service of summons as to the third-party claim may not be made upon him under the Iowa Nonresident Motorist Service Act, and asks that the service of summons upon him be quashed.The third-party defendant further asserts that the Court lacks jurisdiction of his person and, in the alternative, even if the service be valid the third-party claim does not meet the venue requirements of Section 1391(a),28 U.S.C.The third-party defendant further asserts in the alternative that even if the service be valid and the jurisdictional and venue requirements are met, the third-party complaint fails to state a claim for indemnity or contribution under the Iowa law.

This Court has recently considered the Iowa law relating to indemnity and contribution between concurrent tort-feasors in the case of Chicago & North Western Ry. Co. v. Chicago, Rock Island & Pacific R. Co., D.C.N.D.Iowa1959, 179 F.Supp. 33.Under the Iowa law the right of a tort-feasor to indemnity or contribution, in a proper situation, is well recognized.The Iowa rule allowing contribution between concurrent tort-feasors is of recent origin.It had its origin in the case of Best v. Yerkes, 1956, 247 Iowa 800, 77 N.W.2d 23, 60 A.L.R.2d 1354.Since the pronouncement of the Iowa Supreme Court in that case, claims for contribution in motor vehicle collision cases have become frequent.Therefore, the questions raised by the third-party defendant as to service and venue are of special importance.The third-party defendant, as noted, has sought to raise the question of the right of the defendants to either indemnity or contribution under the Iowa law.It is the view and holding of the Court that on the face of the pleadings it cannot be held as a matter of law that the third-party defendant is not or may not be liable to the defendants for all or part of the plaintiff's claim against them.

If the Fred Carlson Company as plaintiff had brought an action in this State against Galus as defendant for damages sustained by it as a result of the collision, there would seem to be no question but that such action would constitute a civil action or proceeding against him for damages to person or property growing or arising out of the use and operation by him of a motor vehicle on the Iowa highways, and Galus does not contend otherwise.It is his contention that the claim for indemnity or contribution asserted by the defendants does not constitute a civil action or proceeding "against him for damages to person or property growing or arising out" of the operation of the automobile and use of an Iowa highway within the scope of Section 321.498.In that connection he asserts that a third-party claim for indemnity or contribution does not come within the scope of Section 321.498; that hence the Commissioner of the Public Safety Department of Iowa has not been designated his attorney or agent for the service of process as to such claim; that consequently he has not been served with process in the manner prescribed by the law of Iowa or by any statute of the United States in accordance with Rule 4(d)(7); and that therefore this Court lacks jurisdiction of his person.The third-party defendant does not challenge the mechanics of the manner in which he was served.The question, then, is whether an Iowa Court in which a defendant is sued for damages allegedly resulting from his negligent operation of a motor vehicle upon an Iowa highway and who wishes to assert a claim for indemnity or contribution against a third party as an alleged concurrent tort-feasor, may acquire jurisdiction of such party by serving him under the Iowa Nonresident Motorist Service Act.

The Iowa Supreme Court has not passed upon the question.It is, therefore, necessary to consider ...