Comer v. Burns

• Decision Date: 11 June 1963
• Docket Number: No. 50861,50861
• Citation: 255 Iowa 251,122 N.W.2d 305
• Parties: Gerald R. COMER, Appellee, v. Lyle E. BURNS, Appellant.
• Court: Iowa Supreme Court

Page 305

122 N.W.2d 305

255 Iowa 251

Gerald R. COMER, Appellee, v. Lyle E. BURNS, Appellant.

No. 50861.

Supreme Court of Iowa.

June 11, 1963.

F. J. MacLaughlin, Davenport, for appellant.

McDonald, McCracken, McDonald & Carlin, Davenport, for appellee.

GARFIELD, Chief Justice.

Plaintiff Comer brought this law action to recover from defendant Burns for personal injuries and damage to plaintiff's car from a collision involving three cars on U. S. Highway 6 about 30 miles west of Davenport on Sunday evening, January 15, 1961, after dark. Following trial there was a jury verdict for defendant for $1017.10 on his counterclaim for the stipulated damage to his car. The trial court sustained plaintiff's motions for judgment notwithstanding verdict and new trial. Defendant appeals from the rulings.

On the afternoon before the collision the Ford car of one Garcia stalled while being driven east on U. S. 6 toward Davenport. Garica left it on the south shoulder of the highway and hitchhiked into Davenport for help. He telephoned plaintiff Comer, a cousin by marriage, who drove him to the parket Garcia car in plaintiff's Mercury. With Garcia at the wheel of his Ford plaintiff pushed it from two to five miles east when the Mercury became overheated and the cars were stopped. Plaintiff then drove his car in front of the Ford and backed to within a few feet in front of it so a chain could be attached from the rear of plaintiff's car to the front of Garcia's to permit plaintiff to tow the Garcia car further east to the first filling station.

While plaintiff was attempting to fasten the chain to the rear of his car and Garcia was trying to fasten it to the front of his, defendant Burns came from the west in his near-new Pontiac, struck the rear of the Garcia car and caused it to collide with the rear of the Mercury. Plaintiff was caught between the Ford and Mercury and seriously injured. His Mercury was also heavily damaged.

The paved portion of the highway at the scene of collision was 24 feet wide. Most of the evidence indicates the Ford and Mercury were stopped on the pavement in the south (east-bound) lane during the attempt to fasten the chain. There is evidence the Garcia car was partly off the pavement on the south shoulder. Plaintiff and Garcia both testify plaintiff's Mercury was further to the north (left) on the pavement than the Ford was.

Charges of negligence against defendant which were submitted to the jury were his failure to--keep a proper lookout, have his vehicle under control, turn it to the left to avoid striking the Garcia car, and drive at a careful and prudent speed.

Charges of negligence against plaintiff in defendant's counterclaim which were submitted were: 1) plaintiff's stopping and leaving his vehicle standing on the paved portion of the highway when it was practical to stop and leave it off such portion, and 2) his failure to leave a clear and unobstructed width of at least 20 feet of the highway opposite his vehicle and to its left for the free passage of other vehicles, both in violation of section 321.354, Codes, 1958 and 1962 I.C.A. Also 3) in plaintiff's failure to have his vehicle equipped with a lighted rear lamp exhibiting a red light plainly visible from a distance of 500 feet to the rear, in violation of Code section 321.387, I.C.A.

A matter of pleading is important upon this appeal and may be referred to now.

Division I of defendant's answer is in effect a denial. Division II alleges plaintiff and Garcia were engaged in a joint venture and the collision was caused by their concurrent negligence. Defendant's counterclaim, however, contains no such allegation as that found in Division II of the answer. The counterclaim alleges the proximate cause of the collision was the negligence of plaintiff and Garcia in each of the three respects just referred to.

I. We first consider the ruling on plaintiff's motion for judgment notwithstanding the verdict for defendant on his counterclaim. Such a motion is governed by rule 243, Rules of Civil Procedure, 58 I.C.A., which provides: 'Any party may, on motion, have judgment in his favor despite an adverse verdict, * * *:

'(a) If the pleadings of the opposing party omit to aver some material fact or facts necessary to constitute a complete cause of action or defense and the motion clearly specifies such failure or omission; or

'(b) If the movant was entitled to have a verdict directed for him at the close of all the evidence, and moved therefor, and the jury did not return such verdict, the court may then either grant a new trial or enter judgment as though it had directed a verdict for the movant.'

Plaintiff did not move for directed verdict at any time and makes no attempt to justify the sustaining of his motion for judgment notwithstanding the verdict under the authority of rule 243(b). Nor is the ruling placed upon this ground. Thus this part of the rule will not support the ruling.

Plaintiff's motion for judgment asserts defendant failed to prove the cause pleaded in his counterclaim, that the three submitted specifications of negligence, supra, all relate to the claim plaintiff and Garcia were engaged in a joint venture and jointly negligent, and there is no evidence to support such a finding or any of the three specifications of negligence. The trial court's ruling recites: 'In his counterclaim defendant has predicated his cause of action solely on the concurrent negligence of plaintiff and Garcia as joint venturers. * * *

'It is manifest the only theory upon which the jury could have found plaintiff responsible for the damage to defendant's car is that he was a joint venturer with Garcia, although they were instructed such was not the relationship. * * *

'Since defendant's counterclaim is based upon an erroneous legal assumption as to plaintiff's relationship to Garcia, plaintiff's motion for judgment notwithstanding verdict comes within rule 243(a) and for that reason is sustained as to each and all of the six paragraphs.'

This ruling cannot be upheld. Plaintiff's motion for judgment does not allege the counterclaim omits 'to aver some material fact or facts necessary to constitute a complete cause of action' and of course does not clearly specify such omission, as rule 243(a), supra, requires. Nor did the trial court so rule. The motion merely asserts defendant failed to prove the cause pleaded in his counterclaim and that there is no evidence to support it or any of the three submitted specifications of negligence therein.

If there were such failure of proof and lack of evidence as plaintiff's motion asserts, this would obviously entitle him to a directed verdict and he should have moved therefor at the close of all the evidence Plaintiff would then be entitled either to a new trial or judgment as though a verdict had been directed for him, under rule i43(b). Plaintiff sought and obtained under rule 243(a) relief to which he would have been entitled under rule 243(b) provided he had properly moved for directed verdict and provided, of course, further there were such failure of proof and lack of evidence as claimed by him. The purpose of rule 243(b) is to afford the trial court an opportunity to correct its error in failing to sustain a motion for directed verdict. Friedman v. Colonial Oil Co., 236 Iowa 140, 145, 18 N.W.2d 196, 199.

As before indicated, the trial court's ruling erroneously asserts defendant's counterclaim is predicated 'solely on the concurrent negligence of plaintiff and Garcia as joint venturers.' The counterclaim contains no such allegation. It merely alleges the proximate cause of the collision was the negligence of plaintiff and Garcia in each of the respects asserted. The words 'and Garcia' were unnecessary to a statement of the cause of action and could have been omitted. Their inclusion does not amount to omission of some material fact necessary to a complete cause of action, within rule 243(a). If every petition or counterclaim were held fatally defective because it includes a few words unnecessary to a statement of the cause of action, few would survive. Pleadings (and even on occasion court opinions) are seldom stripped to the bare essentials.

The counterclaim indicates the pleader had in mind the rule that each person whose negligence concurs or combines to cause injury to another (whether or not a joint venturer and regardless of any question of imputed negligence) is liable therefor. Law v. Hemmingsen, 249 Iowa 820, 826, 89 N.W.2d 386, 391, and citations; Lockwood v. Wiltgen, 251 Iowa 484, 490-492, 101 N.W.2d 724, 728-729, and citations.

Further, if the counterclaim contained the allegation the trial court thought it did, it would not result in the pleading of no cause of action. Certainly it is possible for two persons doing what plaintiff and Garcia were to be joint venturers. As pointed out in 3 Cook's Iowa Rules of Civil Procedure, Revised Ed., page 24, rule 243(a) 'permits judgment because the prevailing party has pleaded no cause of action or defense.' See Stupka v. Scheidel, 244 Iowa 442, 451-452, 56 N.W.2d 874, 879.

See as lending support to the above views, in addition to Stupka v. Scheidel and Friedman v. Colonial Oil Co., also supra, 236 Iowa 140, 145, 18 N.W.2d 196, 199, Jensvold v. Chicago Great Western R. Co., 236 Iowa 708, 715, 18 N.W.2d 616, 620; Marxen v. Meredith, 246 Iowa 1173, 1181, 69 N.W.2d 399, 403; Bokhoven v. Hull, 247 Iowa 604, 606, 75 N.W.2d 225, 226; Siebert v. State Farm Mut. Ins. Co., 251 Iowa 1060, 1062--1064, 103 N.W.2d 757, 758-759.

II. Plaintiff's motion for new trial asserts the jury verdict is (1) not sustained by sufficient evidence, (2) is contrary to law, and (3) appears to have been influenced by passion or prejudice or the jury's misunderstanding and...