Groves v. Donohue

• Decision Date: 13 November 1962
• Docket Number: No. 50656,50656
• Parties: Clarence GROVES, Plaintiff-Appellant, v. Edmund S. DONOHUE, Defendant, Farmers Loan & Trust Company of Sioux City, Iowa, as Executor of the Estate of Arch F. O'Donoghue, Deceased, Defendant-Appellee, Travelers Insurance Company, a corporation, Defendant-Appellee.
• Court: Iowa Supreme Court

Page 65

118 N.W.2d 65

254 Iowa 412

Clarence GROVES, Plaintiff-Appellant, v. Edmund S. DONOHUE, Defendant Farmers Loan & Trust Company of Sioux City, Iowa, as Executor of the Estate of Arch F. O'Donoghue, Deceased, Defendant-Appellee Travelers Insurance Company, a corporation, Defendant-Appellee.

No. 50656.

Supreme Court of Iowa.

Nov. 13, 1962.

Whicher, Davis & Yaneff, Sioux City, for appellant.

Gleysteen, Nelson, Harper, Kunze & Eidsmoe, Sioux City, for appellees Travelers Ins. Co. and Farmers Loan & Trust Co. of Sioux City, Iowa.

Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for appellee Farmers Loan & Trust Co. of Sioux City, Iowa.

THORNTON, Justice.

Plaintiff in his petition at law alleges negligence and deceit on the part of all defendants. He alleges he was injured in the course of his employment on October 7, 1958, and was attended by defendant doctors, their selection as his physicians and surgeons being arranged for at the instance and request of defendant insurance company; that defendant doctors so negligently and unskillfully diagnosed and treated the fractures sustained by plaintiff that his left leg is permanently injured and he is permanently disabled; that the defendant insurance company was negligent in its selection of attending physicians, in concealing from plaintiff the fact that one of the fractures to his leg had not been detected in the original diagnosis and the attempt to reduce that fracture after many months' delay had not been successful, but had a timely operation been performed a union could have been secured, said defendant having actual notice thereof in April, 1960, in not directing the attending physicians to perform timely operations on plaintiff when it had actual notice, and in not advising plaintiff he was in need of further surgery in April, 1960; and that plaintiff did not become aware of the failure to properly diagnose and treat his injury until on or about March 9, 1961, and the fact that further surgery had it been timely performed in the year 1960 would have reduced that fracture and lessened his disability, these facts having been fraudulently concealed from him by defendants.

The defendant insurance company filed a special appearance stating the court has no jurisdiction over the defendant insurance company because plaintiff was injured in the course of his employment and it was his employer's workmen's compensation insurance carrier, that exclusive jurisdiction of compensation matters is vested in the industrial commissioner, and that any liability it may have was only by reason of it being the employer's insurance carrier, that it stands in the shoes of the employer, that proper proceeding had been had before the industrial commissioner resulting in a commuted lump sum settlement and dismissal and release by plaintiff of all claims under the compensation act. It sets out section 85.20, Code of Iowa, 1958, I.C.A., and urges it is not a third party under section 85.22, Code of Iowa, 1958, I.C.A. The details were shown by affidavit. Plaintiff resisted the special appearance urging a separate and severable cause of action was alleged, that the action was not between employee and employer, and that a special appearance was not the proper way to raise the defense asserted by this defendant. The trial court sustained the special appearance holding the industrial commissioner has the same jurisdiction over the insurer as over the employer. The trial court did not directly rule on the propriety of raising the matters urged by defendant insurance company by special appearance.

I. The question of the propriety of raising the jurisdictional question by special appearance comes to us in the following manner. Plaintiff urged it in the trial court but did not raise or argue it in his brief and argument. Because of Fabricius v. Montgomery Elevator Company, Iowa, 114 N.W.2d 297, decided April 3, 1962, the defendant insurance company argues the matter pointing out the negligence there alleged caused the original injury or industrial accident and in this case the negligence and deceit alleged aggravated an existing industrial injury. Plaintiff in his reply brief and argument urges the matters raised cannot be raised by special appearance and our holding in Fabricius is controlling. The trial court's ruling entered prior to the Fabricius decision understandably was influenced by our prior decisions where the exclusive jurisdiction of the industrial commissioner was raised.

Rule 103, Rules of Civil Procedure, 58 I.C.A., provides: 'Every defense in bar or abatement, or to the jurisdiction after a general appearance, shall be made in the answer or reply, save as allowed by rule 104. * * *'

Rule 104, Rules of Civil Procedure, provides: 'Exceptions. Every defense in law or fact to any pleading must be asserted in the pleading responsive thereto, if one is required, or if none is required, then at the trial, except that:

'(a) Want of jurisdiction of the person, * * * must be raised by special appearance * * *; and want of jurisdiction of the subject matter may be so raised. * * *'

Defendant insurance company is not urging lack of jurisdiction of the person, for its special appearance to be proper the matters urged must show lack of jurisdiction of the subject matter.

Unless there is a difference between this case and Fabricius v. Montgomery Elevator Company, Iowa, 114 N.W.2d 297, filed April 3, 1962, the sustaining of the special appearance must be reversed.

In the Fabricius case we held the same matters urged here were strictly matters of defense and that such could not be raised by a special appearance.

We do not believe the distinction pointed out by defendant insurance company as above set out in the Fabricius case and this case is decisive.

What jurisdiction of the subject matter means is thoroughly discussed in State ex rel. Cairy v. Iowa Co-Operative Association, 248 Iowa 167, 169, 170, 79 N.W.2d 775, 776, and Christensen v. Board of Supervisors of Woodbury County, 251 Iowa 1259, 1265, 105 N.W.2d 102, 106, in addition to other authorities discussed, each of these opinions sets out with approval the following statement from 14 Am.Jur., Courts, § 160, p. 364:

'Jurisdiction of the subject matter does not mean simply jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which that particular case belongs, of the nature of the cause of action, and of the relief sought.'

A further explanation is found in 14 Am.Jur., Courts, § 161, pp. 364-365:

'Jurisdiction does not relate to the right of the parties as between each other, but to the power of the court. The question of its existence is an abstract inquiry, not involving the existence of an equity (right) to be enforced or the right of the plaintiff to avail himself of it if it exists. It precedes these questions, and a decision upholding the jurisdiction of the court is entirely consistent with a denial of any equity (right), either in the plaintiff or in anyone else.'

To the same effect see 21 C.J.S. Courts § 23, pp. 36 and 37, and § 35 b, pp. 44, 45 and 46.

The Cairy and Christensen decisions make it clear the district court has jurisdiction of the subject matter of an action when it has a right to try the general class of cases to which the one then before it belongs. In Fabricius we said there could be little doubt the district court has jurisdiction of negligence actions. This case is a tort action alleging negligence and deceit. Again there can be little doubt the district court, a court of general original jurisdiction, section 604.1, Code of Iowa, 1962, I.C.A., has jurisdiction of such subject matter. Defendant insurance company seeks here to avoid this result by urging as in Fabricius that it stands in the same shoes as the employer. We there held such to be defensive.

The same is true here. Negligence and deceit are the subject matter of this lawsuit, the subject matter is not what plaintiff might have alleged, or what defendant thinks are the true facts. These are defensive matters. The same is true where the claim is made that when the entire legal situation is made clear the trial court cannot grant any relief. Christensen v. Board of Supervisors of Woodbury County, 251 Iowa 1259, 1265, 105 N.W.2d 102, 106. The matters raised by a defendant on a special appearance do not change the subject matter of the action alleged. What defendant insurance company is urging is the industrial commissioner has exclusive jurisdiction because of the fact situation surrounding the happening of the injury and the relation of the parties. This is a jurisdictional question, but not of the subject matter of the action alleged.

Defendant insurance company relies on section 85.20, Code of Iowa, 1962, I.C.A., Bridgmon v. Kirby Oil Industries, 250 Iowa 229, 93 N.W.2d 771, and Hlas v. Quaker Oats Company, 211 Iowa 348, 233 N.W. 514, and urges as having some bearing, Lowery v. Iowa Packing Company, 252 Iowa 112, 106 N.W.2d 71, and Travelers Insurance Company v. Sneddon, 249 Iowa 393, 86 N.W.2d 870.

Section 85.20, Code of Iowa, 1962, I.C.A., (the section is identical in the 1958 Code) provides the rights and remedies provided in this chapter for an employee on account of an industrial injury shall be exclusive of all other remedies, and further provides the employee shall be conclusively presumed to have elected to take compensation as provided until notice in writing shall have been served on the employer and industrial commissioner.

Section 85.3, subsection 1, Code of Iowa, 1962, I.C.A., provides:

'1. Except as provided by this chapter, it shall be conclusively presumed that every employer has elected to provide, secure, and pay compensation according to the provisions of this chapter for any and all personal injuries sustained by an employee arising out of and in the course of the employment, and in such cases, the employer shall be...