Franzen v. Dimock Gould & Co.

• Decision Date: 09 February 1960
• Docket Number: No. 49877,49877
• Citation: 251 Iowa 742,101 N.W.2d 4
• Parties: Beverly Ann FRANZEN, Plaintiff-Appellee, v. DIMOCK GOULD & CO., a corporation, Defendant-Appellant. CITY OF BETTENDORF, Lowa, Defendant-Appellee, City of Bettendorf, Iowa, Cross-Petitioner-Appellee, v. DIMOCK GOULD & CO., a corporation, Cross-Defendant-Appellant.
• Court: Iowa Supreme Court

Page 4

101 N.W.2d 4

251 Iowa 742

Beverly Ann FRANZEN, Plaintiff-Appellee, v. DIMOCK GOULD & CO., a corporation, Defendant-Appellant.

CITY OF BETTENDORF, Lowa, Defendant-Appellee, City of Bettendorf, Iowa, Cross-Petitioner-Appellee, v. DIMOCK GOULD & CO., a corporation, Cross-Defendant-Appellant.

No. 49877.

Supreme Court of Iowa.

Feb. 9, 1960.

Rehearing Denied April 8, 1960.

Betty, Neuman, Heninger, Van Der Kamp & McMahon, Richard M. McMahon, Davenport, for plaintiff-appellee.

McDonald & McCracken, Elliott R. McDonald, Jr., Davenport, for defendant-cross-petitioner-appellee.

Kopf & Christiansen, Clarence H. Christiansen and Marvin J. Christiansen, Davenport, for defendant-cross-defendant-appellant.

GARRETT, Justice.

Beverly Ann Franzen was injured in a fall on an icy private driveway across a public sidewalk in the city of Bettendorf. She sued the city and Dimock Gould & Co., a corporation, owner of the parking lot in connection with which the driveway was used.

After being served with notice of the action, the city served notice upon the Dimock Gould & Co. under Section 368.34 of the 1954 Code of Iowa, I.C.A., to appear and defend for the city. The company hereinafter referred to as appellant, refused to defend for the city but defended in its own behalf. The trial resulted in a verdict against the city and appellant for $4,750.

The question of the city's right to indemnity from appellant was reserved for determination by the court as a question of law and on April 20, 1959 the court entered judgment for the city on its cross-petition against appellant.

There is no dispute here as to the time, place, cause and severity of plaintiff's injuries. The city did not appeal. It is appellant's contention the trial court erred in refusing to direct a verdict for it and against plaintiff and the city on grounds hereinafter mentioned. The appeals from the verdict and judgment for plaintiff and judgment in favor of the city were ordered joined.

I. It claimed the court erred in refusing appellant's motion for a directed verdict on the ground plaintiff's petition failed to state a cause of action against it in that no acts charged were actionable grounds of negligence.

The petition alleged that as a result of much vehicular traffic controlled by appellant 'a considerable amount of snow, slush and ice was deposited upon the public sidewalk in question with the knowledge and consent and under the direction of * * * (appellant) which snow, slush and ice became slippery, uneven and rough and thus resulted in a dangerous condition and nuisance and endangered the safety of pedestrians walking on said public sidewalk.' It further alleged that plaintiff fell and sustained her injuries while 'walking on the sidewalk at the place in question where the driveway of * * * (appellant) crosses said sidewalk and where large deposits of snow, slush and ice had wrongfully been allowed to accumulate in a rough, uneven, slippery and unsafe condition on the public sidewalk by the defendant Dimock Gould & Co.' The other usual and necessary allegations were present. We hold the petition stated a cause of action.

Without the aid of a brief and argument on behalf of plaintiff-appellee, we find ample authority sustaining her position. The liability of the city is based upon its statutory duty to keep its streets 'open and in repair and free from nuisances.' Section 389.12, Code, 1954, I.C.A. The property owner's liability in such cases is based upon his negligence in creating and maintaining a dangerous condition or nuisance causing the damage. City of Des Moines v. Barnes, 238 Iowa 1192, 1199, 30 N.W.2d 170; 43 C.J., Municipal Corporations, Sections 1864, 1865; 42 C.J.S. Indemnity § 22; 25 Am.Jur., Highways, Section 392; 27 Am.Jur., Indemnity, Sections 18, 19.

Where an abutting property owner's negligence creates an icy condition on a sidewalk, the liability of the property owner and of the city, as between themselves, to one who is injured thereby, may be primary and secondary, respectively. This is important as the city has a right of action against the property owner whose negligent acts cause the damage. They are not joint tort-feasors.

Section 368.34 provides: 'Notice to person liable over. When any action is brought against a municipal corporation for personal injuries alleged to have been caused by its negligence, said municipal corporation may notify in writing any person or corporation by whose negligence it claims the injury was caused. Said notice shall state the pendency of said action, the name of the plaintiff, the name and location of the court where the action is pending, a brief statement of the alleged facts from which the cause arose, that said municipal corporation believes that the person or corporation so notified is liable to it for any judgment rendered against said municipal corporation, and asking such person or corporation to appear and defend. Thereupon, any judgment obtained in such suit shall be conclusive in any action by the municipal corporation against any person or corporation so notified, as to the existence of the defect or other cause of the injury or damage, as to the liability of the municipal corporation to the plaintiff in the first named action in consequence thereof, and as to the amount of the damage or injury occasioned thereby; and every such municipal corporation is hereby empowered to maintain an action against the person or corporation so notified to recover the amount of any such judgment together with all the expenses incurred by such municipal corporation in such suit.' This section 'does not create the liability of the property owner in cases of this kind. That liability exists at common law, 42 C.J.S. Indemnity § 22; 25 Am.Jur., Highways, § 392; 27 Am.Jur., Indemnity, §§ 18, 19. But the statute does provide a method whereby any judgment rendered against the city will be held conclusive against the property owner as to the matters therein specified. The procedure is at least analogous to the common-law process of voucher whereby an impleaded warrantee brings in his warrantor as the real party and makes him defend the action. 67 C.J. Voucher 279, 280.' City of Des Moines v. Barnes, supra [238 Iowa 1192, 30 N.W.2d 173]; Ahern v. City of Des Moines, 234 Iowa 113, 12 N.W.2d 296.

Appellant cites Atkinson v. Sheriff Motor Co., 203 Iowa 195, 212 N.W. 484. In that case injuries resulted from a fall upon a sidewalk in which a slight depression had resulted from long continued vehicular traffic. 'It is a general rule, almost universally recognized, that an owner or tenant in the occupancy of a building abutting upon a public sidewalk or street, who, by some affirmative act or perhaps by some act of negligence constituting a nuisance, is liable to persons injured in consequence thereof. City of Ottumwa v. Parks, 43 Iowa 119; Calder v. Smalley, 66 Iowa 219, 23 N.W. 638; Edwards v. Hasel, 157 Iowa 416, 138 N.W. 501; 2 Elliott on Roads and Streets (3d Ed.) § 899, and cases cited. * * * It did not result from an affirmative act of the servants or agents of appellee, nor was it the result of negligence on its part.' See also Clarke v. Hubbell, 249 Iowa 306, 86 N.W.2d 905; Case v. City of Sioux City, 246 Iowa 654, 69 N.W.2d 27.

An abutting owner is not liable to pedestrians who sustain injuries by falling on snow or ice which occurs naturally on a public sidewalk, nor is he liable for injuries sustained by reason of the sidewalk being in a dangerous condition from ordinary wear and tear or action of the elements. Mutzel v. Northwestern Bell Tel. Co., 247 Iowa 14, 72 N.W.2d 487 and cases cited.

We do not hold that the ordinary use of a private driveway in the ordinary manner may in all cases create a nuisance or legal hazard even though the natural surface of snow and ice thereon may be slightly changed. Whether or not a dangerous situation or unisance is created thereby is a question for a jury to determine under proper instructions, as in this case, where, according to the jury's verdict, snow and slush not originally there were deposited on the crossing in substantial amounts and made hazardous by vehicles of the defendant, its employees and customers.

If a private residential driveway across a public sidewalk were involved and if it were used as such driveways are ordinarily used and no unusual or unnatural hazard were created other than necessarily accompanies normal use we would be disposed to hold otherwise. We are inclined to say that a slick or rough spot on a private driveway, resulting from normal and natural use, where negligence is not involved, would not support a verdict for plaintiff.

The common law imposed no duty upon abutting property owners to keep the sidewalks in front of their premises free from ice and snow accumulated thereon in the natural way. Mutzell v. Northwestern Bell Tel. Co., supra; Bentson v. Berde's Food Center, Inc., 231 Minn. 451, 44 N.W.2d 481, 22 A.L.R.2d 733, 736, 737. The same rule prevails in Iowa. Atkinson v. Sheriff Motor Co. and Case v. City of Sioux City, both supra.

II. Appellant insists there was no evidence to show the use of the sidewalk was not normal and lawful, and that there was not sufficient evidence to take the case to the jury on the question whether appellant caused the condition complained of and whether it failed to warn plaintiff of the condition or exercised control over the walk at the place in question.

We consider the evidence was sufficient to go to the jury. It is undisputed the most recent snow fall had been some twelve days prior to the accident and this walk, except at the driveway and possibly a spot here and there, was clear of snow and ice.

Plaintiff's exhibit 1, herein reproduced being a photograph of the crossing, taken the day following the accident, conditions being the same, is a most forceful witness in her behalf. The 'X' thereon marks the spot where plaintiff fell.

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