Fane v. Hootman
| Court | United States State Supreme Court of Iowa |
| Citation | 254 Iowa 241,117 N.W.2d 435 |
| Docket Number | No. 50831,50831 |
| Parties | Harry FANE, Plaintiff, v. James HOOTMAN, Defendant-Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Third-Party Defendant-Appellant. |
| Decision Date | 16 October 1962 |
Page 435
v.
James HOOTMAN, Defendant-Appellee,
v.
CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Third-Party Defendant-Appellant.
Waldo Fimmen, Bloomfield, A. B. Howland and B. A. [254 Iowa 242] Webster, Jr., of Des Moines, for third party defendant-appellant.
D. W. Harris, Bloomfield, for plaintiff.
Napier & Fehseke by R. L. Fehseke, Fort Madison, for defendant-appellee.
SNELL, Justice.
We have before us on interlocutory appeal a question of pleading. This case was instituted by the plaintiff, a bystander against defendant the operator of a road grader struck by a train.
On April 26, 1961, a collision occurred at a railroad crossing between a road grader operated by defendant, James Hootman, and a train owned and operated by Chicago, Rock Island and Pacific Railroad Company.
Page 436
At the time of the collision plaintiff was in a park about 40 feet from the crossing. When the collision occurred a piece of steel from the road grader struck plaintiff injuring him. He brought suit against the operator of the road grader and did not sue the railroad. Defendant Hootman thereupon made application to bring the railroad in as a third party defendant and this motion was granted.The defendant thereupon filed his crosspetition against the third party defendant. He alleged that the plaintiff's injuries were solely and proximately caused by the negligence of the third party defendant. He further alleged:
'That even if it should be found that negligence of Cross-Petition Plaintiff contributed to the collision and alleged damages and injuries to plaintiff (Cross-Petition Plaintiff specifically denies that he was guilty of any negligence), then said collision and resulting alleged damages and injuries to Plaintiff were the result also of negligence of Cross-Petition Defendant, and, in such event, if judgment were recovered against Defendant--Cross-Petition Plaintiff, said Defendant--Cross Petition Plaintiff would have a right of action against said Railroad Company for indemnity and/or contribution.'
Thereupon the third party defendant moved to strike the cross-petition on the grounds that no facts are stated upon which indemnity could be based and further that the allegations of the [254 Iowa 243] cross-petition were insufficient to support a claim for contribution as the defendant does not allege that the injuries were caused by the concurring negligence of the railroad and the defendant Hootman.
The third court overruled the motion of the third party defendant.
The third party defendant appeals from this ruling.
This case does not present a question of derivative liability or indemnity. We are concerned only with the question of contribution between tort-feasors. The distinction between joint and concuring tortfeasors should be kept in mind, although as pointed out in Chicago & North Western Ry. Co. v. Chicago, Rock Island & Pacific R. Co., D.C., 179 F. Supp. 33, Best v. Yerkes, infra, and Allied Mutual v. Long, infra, the term 'joint tort-feasor' is commonly used to include both. The problem is whether a contingent claim for contribution based on a possible finding of concurring negligence can be presented in the main action of plaintiff by a defendant against a third party defendant.
Rule 33(b) R.C.P., 58 I.C.A. provides:
'Against New Parties. When a defendant to a petition, cross-petition or counterclaim will, if held liable thereon, thereby be entitled to a right of action against one not already a party, he may move to have such party brought in, to the end that the rights of all concerned may be determined in one action. Such motion must be supported by affidavit.'
In the case before us plaintiff seeks recovery against defendant and pleads negligence, proximate cause, freedom from contributory negligence and damage.
Defendant in his cross-petition against the third party defendant, says that the collision and alleged damages to plaintiff were solely and proximately caused by the negligence of Cross-Petition Defendant. Eight specifications of negligence are urged.
This position of defendant (Cross-Petition Plaintiff) is primarily defensive. If, at the time of trial, it is found by the jury that negligence of the third party defendant was the sole cause [254 Iowa 244] of plaintiff's injury no act of defendant could be a proximate or even contributing cause.
In the alternative, defendant (Cross-Petition Plaintiff) says that if it should be found that his negligence contributed to the collision and alleged damage to plaintiff, negligence of third party defendant was a
Page 437
concurring cause and defendant would have a right of action for contribution.Third party defendant by motion attacks the pleading and urges that defendant must either plead his own negligence or have his third...
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Iowa Power & Light Co. v. Abild Const. Co., 51665
...of contribution on 'common liability'. Best v. Yerkes, supra; Hawkeye-Security Ins. Co. v. Lowe Construction Co., supra; Fane v. Hootman, 254 Iowa 241, 245, 117 N.W.2d 435; Public Service Elec. and Gas Co., v. Waldroup, 38 N.J.Super. 419, 119 A.2d 172, 179; Employers Mutual Liability Ins. C......
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Boyle v. Burt, 53860
...though such a claim is contingent at the time notice is required to be served.' Touching on the matter of contingency is Fane v. Hootman, 254 Iowa 241, 247, 117 N.W.2d 435, where this court held, it is not essential that a defendant's cause of action against an impleaded third party defenda......
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Federated Mut. Implement & Hardware Ins. Co. v. Dunkelberger, 53501
...956, 90 N.W.2d 10, 12; Hawkeye-Security Ins. Co. v. Lowe Construction Co., supra, 251 Iowa 27, 31, 99 N.W.2d 421, 425; Fane v. Hootman, 254 Iowa 241, 117 N.W.2d 435; Iowa Power & Light Co. v. Abild Constr. Co., 259 Iowa 314, 319, 144 N.W.2d 303, 306 and (No question of special defense to an......
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Blackford v. Sioux City Dressed Pork, Inc., 50810
...cannot be sustained upon the ground on which it was placed. At the time the ruling was made, we had not decided Fane v. Hootman, Iowa, 117 N.W.2d 435. The trial court in all probability relied upon our pronouncement in Allied Mutual Casualty Company v. Long, 252 Iowa 829, 107 N.W.2d 682. Bu......