Elder v. Maudlin

• Decision Date: 17 December 1931
• Docket Number: No. 41121.,41121.
• Parties: ELDER v. MAUDLIN ET AL.
• Court: Iowa Supreme Court

213 Iowa 758

239 N.W. 577

ELDER

v.MAUDLIN ET AL.

No. 41121.

Supreme Court of Iowa.

Dec. 17, 1931.

Appeal from District Court, Marshall County; Clarence Nichols, Judge.

Action at law for personal injury damages brought against the owner and the driver of an automobile and the contractor on public work. Various motions made by the various defendants, including one alleging misjoinder of parties and causes of action, were overruled. The defendants appeal. The facts appear in the opinion.

Modified and affirmed.Hallagan, Fountain & Stewart, of Des Moines, and Boardman & Cartwright, of Marshalltown, for appellants Maudlin and Burgess.

Roy Pell, of Marshalltown, for appellant Alexander.

Cross & Hamill, of Newton, for appellee.

GRIMM, J.

In December, 1930, the plaintiff filed his petition at law in the district court of Marshall county, Iowa, asking damages in the sum of $25,000 for personal injuries.

It appears that the plaintiff, who was the county engineer in the service of Marshall county, Iowa, was injured on a highway then being improved in Marshall county. The defendant Burgess, who was the driver of a truck owned by the defendant Maudlin, backed the truck on the work on the highway in such a way as to injure the plaintiff. The defendant Alexander was the contractor who had a contract with Marshall county to make the road improvement. Burgess and Maudlin were residents of Story county, and Alexander was a resident of Marshall county.

The original petition seeks to recover from Burgess because of alleged negligence as the driver of the autotruck and against the defendant Maudlin under statutory liability as the owner of said truck. Recovery is sought against Alexander as the master of the driver, Burgess. Later the plaintiff filed an amendment to the petition, which amendment is in two counts. It alleges that the contract under which Alexander was doing the road work was a written one, and that at the time of the injury, Burgess was hauling gravel pursuant to and as provided in the contract between the defendant Alexander and Marshall county. There is attached to the amendment the contract and also the standard specifications for road building which were a part of the contract. Neither Burgess nor Maudlin were parties to the written contract with the county.

By various motions, the defendants sought to have the amendment stricken from the record upon the ground that it created a misjoinder of causes of action and of parties defendant. Said section 39 of the specifications is as follows:

“39. Responsibility for Accidents or Damage Claims. The contractor shall assume all responsibility for damages sustained by persons or property due to the carrying on of his work. He shall indemnify and save harmless the state and county and all of their officers or agents from all suits, actions, or claims of any character brought for or on account of any injuries or damages sustained by any person or property by or from the said contractor, or in consequence of any neglect in safeguarding the work, or on account of any acts or omissions, neglect or misconduct of the said contractor.

The contractor, under these specifications, shall carry liability insurance to indemnify the public for injuries sustained by reason of the carrying on of his work, and to meet the requirements of the Iowa Workmen's Compensation Law.

Responsibility of the contractor for all damages or injuries to the traveling public on any portion of the road shall not be released until the work on such portions has been approved by the engineer. ‘Approval by the engineer’ shall be construed to mean a written statement from him to the effect that the contractor may cease to maintain barriers and red lights as required, and that the road may be opened to traffic, and that the contractor is relieved from further maintenance of that portion of the road. Such ‘Approval by the engineer’ shall not in any way be construed as an acceptance of the road.”

Section 10960 of the Code of 1927 reads as follows: “10960. When permitted. Causes of action of whatever kind, where each may be prosecuted by the same kind of proceedings, if held by the same party, and against the same party, in the same rights, and if action on all may be brought and tried in that county, may be joined in the same petition.”

We do not here pass upon any question concerning what liability, if any, arises under said section 39 of the specifications, as against Alexander. Assuming, although not deciding, that said section 39 creates a liability against Alexander under the facts in this case, the question is whether a suit against Burgess and Maudlin, residents of Story county, sounding in tort, and an action against Alexander, based upon contract, may be brought in one action. The appellee relies mainly upon the case of Knott v. Dubuque & Sioux City Railway Co., 84 Iowa, 462, 51 N. W. 57. The Knott Case, supra, has been thoroughly analyzed by this court in the case of Aplin v. Smith, 197 Iowa, 388, 197 N. W. 316, 318. In the Aplin Case, the action was...