Brandt v. Olson

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
Citation190 F. Supp. 683
Docket NumberCiv. No. 856.
PartiesDelores BRANDT, Plaintiff, v. Howard Bell OLSON and Fred Carlson Company, Inc. sometimes known as Fred Carlson Company, Defendants and Third-Party Plaintiffs, v. Walter J. GALUS, Third-Party Defendant.
Decision Date01 February 1961

Wendell A. Holmes, of Reed & Holmes, Waterloo, Iowa, for plaintiff.

Robert R. Buckmaster, George Lindeman and Bruce M. Snell, Jr., of Beecher, Buckmaster, Beecher & Lindeman, Waterloo, Iowa, for defendants and third-party plaintiffs.

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

GRAVEN, District Judge.

At the present stage of this litigation several questions have arisen in connection with the third-party claim of the defendants Howard Bell Olson and Fred Carlson Company, Inc. against the third-party defendant, Walter J. Galus. 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 defendant Fred Carlson Company and operated by its employee, the defendant Howard Bell Olson. The automobile in which the plaintiff was riding was being operated by the third-party defendant, Walter J. Galus. The plaintiff brought the present action against the defendants Fred 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. The plaintiff is a citizen and a resident of the State of Illinois. The defendant Fred Carlson Company is an Iowa corporation with its principal place of business in Iowa. The defendant Howard Bell Olson is a citizen and resident of the State of Texas. The third-party defendant, Walter J. Galus, is a citizen and resident of the State of Missouri. The plaintiff seeks to recover the sum of $100,000 from the defendants. Pursuant to leave of Court, the defendants filed a third-party complaint against Walter J. Galus under Rule 14(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Service of summons was made upon Walter J. Galus under the Iowa Nonresident Motorist Service Act. Sections 321.498-321.512, Code of Iowa 1958, I.C.A. Walter J. Galus challenged the jurisdiction of this Court under that service. He also challenged the venue as to him. This Court overruled those challenges. Brandt v. Olson et al., D.C.N.D.Iowa 1959, 179 F. Supp. 363. In the recent case of Cannon v. Century Construction Company, Iowa 1960, 106 N.W.2d 65, in which a claim for indemnity or contribution was made, the Iowa Supreme Court held that a claim for indemnity or contribution growing out of a motor vehicle mishap is an action arising out of injuries to a person or damage to property caused by the operation of a motor vehicle, under Section 616.18, Code of Iowa 1958, I.C.A. relating to the venue of motor vehicle damage actions. In that same opinion the Court discussed the case of Brandt v. Olson, supra, and other cases relating to the service of process under Nonresident Motorist Service Acts. There is a recent note on "Ancillary Process and Venue in the Federal Courts" in 73 Harvard Law Review 1164 (1960).

It has long been the Iowa law that under proper conditions one who has had to respond in damages in tort is entitled to indemnity from another tort-feasor. See cases cited in Chicago & N. W. Ry. Co. v. Chicago, R. I. & P. R. Co., D.C.N.D.Iowa 1959, 179 F.Supp. 33, 58, 59. The most recent Iowa case involving indemnity is the case of Franzen v. Dimock Gould & Company, Iowa 1960, 101 N.W.2d 4. It is the present Iowa rule that there may be contribution among concurrent tort-feasors. This rule is of recent origin. It had its origin in a pronouncement made by the Iowa Supreme Court in the case of Best v. Yerkes, 1956, 247 Iowa 800, 77 N.W.2d 23, 60 A.L.R.2d 1354. See Comment, 42 Iowa Law Review 450 (1957), and Thomas, Contribution Between Joint Tortfeasors As Affected By The Yerkes Case, 6 Drake Law Review 30 (1956). The rule was referred to in Van Tiger v. Hendricks, 1957, 249 Iowa 25, 85 N.W.2d 543, 545. It was applied in the case of Constantine v. Scheidel, 1958, 249 Iowa 953, 90 N.W.2d 10, and Hawkeye-Security Insurance Company, Inc. v. Lowe Construction Company, Iowa 1959, 99 N. W.2d 421. It was the subject of Federal Court consideration in the case of Chicago & N. W. Ry. Co. v. Chicago, R. I. & P. R. Co., D.C.1959, 179 F.Supp. 33; same case on appeal, Chicago, R. I. & P. R. Co. v. Chicago & N. W. Ry. Co., 8 Cir., 1960, 280 F.2d 110, certiorari denied, 1961, 81 S.Ct. 378. Situations in which indemnity is allowed are not frequent. However, because motor vehicle mishaps frequently occur because of concurrent negligence of two or more persons, a claim for contribution is frequently asserted in litigation growing out of such mishaps. Because of the recent origin of the rule permitting contribution among concurrent tort-feasors, many questions relating to both the substantive law and procedure in that field are arising for the first time. In the case of Constantine v. Scheidel, supra, the Iowa Supreme Court stated (at page 12 of 90 N.W.2d) that so far as contribution was concerned it was "Venturing into an uncharted field of law * * *."

In the present case the defendants and third-party defendant have been and are in disagreement as to several matters in connection with the third-party claim of the former against the latter. The first matter of controversy relates to the matter of a jury trial on the third-party claim for indemnity or contribution. For convenience in reference, the defendants Olson and Fred Carlson Company will be referred to as the defendants and the third-party defendant Walter J. Galus will be referred to as the third-party defendant.

When the plaintiff filed her complaint in this action, she indorsed thereon a demand for a jury trial under Rule 38, Federal Rules of Civil Procedure. Paragraph (b) of that Rule provides:

"Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party."

Paragraph (d) of that Rule provides, in part, that "A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties." Rule 177 of the Iowa Rules of Civil Procedure 58 I.C.A. is so similar that federal decisions involving Rule 38 of the Federal Rules are persuasive as to Rule 177 of the Iowa Rules. 2 Cook and Loth, Iowa Rules of Civil Procedure 202, 203 (rev. ed. 1951). The plaintiff and the defendants are agreed that the issues between them are properly triable to a jury. The defendants claim that the issues between them and the third-party defendant are properly triable to a jury, which claim is resisted by the third-party defendant. The defendants did not make a demand for a jury trial within ten days after the service of the last pleading directed to the issues between them and the third-party defendant. It was the thought of the defendants that the demand for jury trial in the main action between them and the plaintiff carried over to their cross-claim against the third-party defendant. This Court ruled that the demand for jury trial by the plaintiff did not embrace the issues between the defendants and the third-party defendant. See McAndrews v. United States Lines Company, D.C.1958, 167 F.Supp. 41. In that case the Court quotes from Moore's Federal Practice, in part (at page 43):

"* * * Thus assume that A sues X; X answers and also files a third-party complaint against Y. If A makes a timely general demand the demand embraces all the issues between A and X, and X may rely thereon and need not make a demand for those issues. It is rather strained, however, to say that A's general demand embraces the third-party issues between X and Y, with which A is not concerned. * * *"

Following the ruling of this Court that the jury demand made by the plaintiff did not embrace the issues between the defendants and the third-party defendant, the former asked leave to make a belated request for a jury trial as to those issues, which was granted. The third-party defendant, by proper procedure, has challenged the right of the defendants to a jury trial on the issues between him and them on the ground that a claim for indemnity or contribution is equitable in nature and is not properly triable to a jury.

The case of Best v. Yerkes, supra, in which the Iowa Supreme Court made the pronouncement that there could be contribution among concurrent tortfeasors, involved a claim for contribution arising out of a motor vehicle mishap. The Court after referring to the circumstances and the parties, stated (at page 29 of 77 N.W.2d):

"* * * We hold the true rule to be that under such circumstances there is at least a right of equitable contribution between them." (Emphasis supplied.)

In connection with the pronouncement of the rule, the Iowa Supreme Court cited and apparently relied upon a number of Wisconsin and Minnesota cases. For that reason, cases involving the Minnesota and Wisconsin law are of special interest. In the case of Hendrickson v. Minnesota Power & Light Company, Minn.1960, 104 N.W.2d 843, the Minnesota Supreme Court stated (at page 846 of 104 N.W.2d):

"The principles governing contribution and indemnity are similar both in origin and in character. In modern law these principles comprise the subject that is treated under the general title of restitution. The principles of restitution are derived from the old common-law actions of general assumpsit and those which we now call quasi-contract and from the equitable principles of unjust enrichment. * *" (Emphasis supplied.)

On page 847 of 104 N.W.2d the same Court stated that although...

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7 cases
  • N-500L Cases, In re
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 28, 1982
    ...from equitable principles of fairness, is a legal right arising out of the tort and enforceable in an action at law. Brandt v. Olson, 190 F.Supp. 683, 686-87 (N.D.Iowa 1961); Globig v. Greene & Gust Co., 184 F.Supp. 530, 534 (E.D.Wis.1960). The most recent decision directly addressing the q......
  • Dennler v. Dodge Transfer Corporation
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    • U.S. District Court — District of Connecticut
    • January 24, 1962
    ...Moore, Federal Practice § 13.34, at 93 (1948); Bohn v. American Export Lines, Inc., 42 F.Supp. 228 (S.D.N.Y. 1941). 4 Brandt v. Olson, 190 F.Supp. 683, 688 (N.D.Iowa 1961); Falciani v. Philadelphia Transp. Co., 189 F.Supp. 203 (E.D. Pa.1960); Smith v. Whitmore, 270 F. 2d 741 (3rd Cir. 1959)......
  • Guidry v. Kem Mfg. Co.
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    • U.S. Court of Appeals — Fifth Circuit
    • July 6, 1979
    ...by the court not the jury. Cf. Green v. Taca International Airlines, La.1974, 304 So.2d 357, 359. Compare, e. g., Brandt v. Olson, N.D.Iowa 1961, 190 F.Supp. 683, 688-89. Here, it was proper to allow the jury to resolve the question whether either or both of the defendants were liable to Th......
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    • Iowa Supreme Court
    • January 10, 1967
    ...controlling facts here, the court's contribution judgment was not within the scope of rule 105, Rules of Civil Procedure. Brandt v. Olson, 190 F.Supp. 683 (D.C.1961). Appellants maintain the vital fact issue, unresolved at the time of this hearing, was whether Nelson was liable to Pedersen,......
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