Fay v. Dorow
| Decision Date | 16 November 1937 |
| Docket Number | 43901. |
| Citation | 276 N.W. 31,224 Iowa 275 |
| Parties | FAY v. DOROW et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Johnson County; H. D. Evans, Judge.
An appeal from an order overruling a motion for more specific statement. The situation and point at issue appear in the opinion.
Reversed.
W. J Jackson and Byington & Rate, all of Iowa City, for plaintiff-appellee.
Will J. Hayek, of Iowa City, and Grimm, Elliott, Shuttleworth & Ingersoll, of Cedar Rapids, for defendant-appellee.
E. A Baldwin, of Iowa City, and Putnam, Putnam, Filmore & Putnam of Des Moines, for defendants-appellants.
The plaintiff, as administrator of LeRoy T. Fay, brought the instant action seeking to recover from the defendants, Dorow and the Willards, for the death of the decedent, LeRoy T. Fay, resulting from injuries received in a collision between automobiles driven by the defendant, Dorow, and the defendant, John W. Willard, Jr. Plaintiff's petition alleges that the decedent was riding in the rear seat of a Chevrolet sedan owned by the defendant John W. Willard, Sr., and being driven by the defendant John W. Willard, Jr., in a westerly direction on U.S. Highway No. 30 near the town of Mechanicsville, Iowa; that a Chevrolet coupéowned and driven by the defendant, Dorow, was proceeding in an easterly direction and toward the Willard automobile; that the two automobiles collided just outside the corporate limits of Mechanicsville, Iowa; and that as a result of said collision the decedent received injuries from which he soon thereafter died. The plaintiff further alleges that the collision and resulting injuries and death " were the direct and proximate result of the concurrent, reckless, and negligent conduct of said defendants." Four specific violations of the law of the road were alleged against the driver of each of the cars involved, as follows: The defendant Willard, Jr., is charged (1) with failing to yield one-half of the traveled portion of the highway as he approached the oncoming car; (2) that he failed to have his car under control; (3) that he failed to keep a proper lookout; and (4) that he was operating his automobile at an excessive rate of speed. The same identical charges were made against the defendant Dorow. The allegation is then made: " The said negligent and reckless acts and conduct of said defendants in the particulars set out above operated jointly and concurrently as the direct and proximate causes of the collision and resulting injuries to said decedent, LeRoy T. Fay." Then follow allegations that the decedent was free from contributory negligence; itemized statements of damages, and a demand for judgment against all defendants for a sum in excess of $25,000.
To this petition the defendants Willard filed a motion This motion was overruled by the court, and from such ruling this appeal is prosecuted.
Some question is raised as to the right of the appellants to appeal from the ruling on a motion for more specific statement, but there is no merit to such contention. Section 11127, Code, provides that when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or offense is not apparent, the court may, on motion, require it to be made more certain and specific.
Paragraph 4 of section 12823 of the Code provides that an appeal may be taken to the supreme court from " an intermediate order involving the merits or materially affecting the final decision."
In Dorman v. Credit Reference Co., 213 Iowa 1016, 241 N.W. 436, 441, this court had under consideration this precise question and held that the order was appealable, and in disposing of the matter used the following language: See, also, Ontjes v. McNider, 218 Iowa, 1356, 256 N.W. 277; Ellis v. Bruce, 215 Iowa 308, 245 N.W. 320; Manley v. Paysen, 215 Iowa, 146, 244 N.W. 863.
In the Dorman Case, supra, this court announced the test by which the right of appeal from an intermediate order shall be determined, as follows: " Will the party aggrieved thereby be deprived of some right which cannot be protected by an appeal from the final judgment?"
The appellee contends that the ruling of the trial court was correct and that no appeal lies therefrom for the reasons that the petition advises the defendants that plaintiff claims both recklessness and negligence on the part of both defendants, and that the defendants should be prepared to meet the charge of recklessness as well as negligence; and that the plaintiff is not in possession of the facts necessary to advise the defendant whether the decedent was a guest or not; and that even if decedent was a guest in the Willard car, and the defendants Willard were only liable for recklessness, it does not follow that they would be entitled to a separate trial. But these contentions are no answer to the defendants' claim that there was error in overruling their motion for more specific statement.
It is true that the general rule is that joint tort-feasors may be joined in one action, and also that the granting of separate trials is ordinarily largely a matter within the discretion of the trial court. However, it is apparent from a reference to the plaintiff's petition that something more is necessarily involved than the mere liability of joint tort-feasors. It is true that the petition...
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