Hawkeye Sec. Ins. Co. v. Ford Motor Co.
| Decision Date | 29 June 1972 |
| Docket Number | KELSEY-HAYES,No. 54695,54695 |
| Citation | 199 N.W.2d 373 |
| Court | Iowa Supreme Court |
| Parties | HAWKEYE SECURITY INSURANCE COMPANY, Appellee, v. FORD MOTOR COMPANY, Appellant, v.COMPANY, Appellee. |
Jones, Cambridge, Carl & Feilmeyer, Atlantic, for appellant.
Patterson, Lorentzen, Duffield, Timmons & Irish, Des Moines, for appellee Hawkeye Security Ins. Co.
Ahlers, Cooney, Dorweiler, Allbee & Haynie, Des Moines, for appellee Kelsey-Hayes Co.
This is an action which sounds in strict liability by which the plaintiff, Hawkeye Security Insurance Company, seeks indemnity from Ford Motor Company as the assembler of a truck for loss the plaintiff (hereinafter Hawkeye) was required to pay to an insured third party by reason of a judgment against plaintiff's insured. Defendant, Ford Motor Company, as the assembler of the truck (hereinafter Ford), by cross-petition sued Kelsey-Hayes Company (hereinafter Kelsey-Hayes) for indemnity on four theories in the event Ford was found liable, viz:
(1) Breach of implied warranty.
(2) Breach of express warranty.
(3) Strict liability.
(4) Negligence.
Hawkeye's petition and Ford's theory of strict liability were submitted to a jury which returned a verdict for plaintiff Hawkeye in the amount of $17,749.93, and for Kelsey-Hayes and against Ford on the cross-petition.
The questions presented on appeal are directed at the failure of the court to sustain a motion to direct verdict in favor of Ford, and upon the failure of the court to instruct the jury on all of Ford's theories in its action over against Kelsey-Hayes.
On May 23, 1964 a 1962 model Ford truck operated by Thomas Kolby and owned by Tri-B Corporation ran into and against the rear of a farm-tractor and trailer owned and operated by one LaVern W. Koppold, causing injuries and property damage. Following the accident, Koppold obtained a judgment against Kolby and Tri-B Corporation in the amount of $20,902.30, which was fully satisfied by plaintiff Hawkeye, the insurance carrier of Tri-B Corporation by the payment of $17,500.00 plus costs of $249.33. In the main case, Hawkeye had sought indemnity by, or contribution from, Ford the manufacturer of the truck, and Ford in turn sought indemnity from Kelsey-Hayes, the supplier of the brakes for the truck. A motion for separate trial was filed and sustained.
Hawkeye's original action against Ford was pleaded in four divisions, viz:
(1) Breach of implied warranty of fitness.
(2) Strict liability in tort.
(3) Active negligence of Ford versus passive negligence of Tri-B Corporation and its employee, Kolby.
(4) Contribution from Ford on the theory Ford's negligence concurred with the negligence of Tri-B Corporation in causing the damages for which Tri-B (and Hawkeye as its insurer) was eventually held liable.
By ruling on a motion to dismiss the trial court removed from the case the theories of strict liability and the pleaded theory of active versus passive negligence. At the close of plaintiff's evidence, the court further sustained a motion to direct on the theories of implied warranty and contribution, in effect holding:
(1) That plaintiff was not within the class to which the implied warranty applied.
(2) There was no substantial evidence of breach of implied warranty of fitness or of proximate cause.
(3) There was no substantial evidence of negligence on the part of Ford Motor Company.
On the first appeal involving this case to this court, reported at 174 N.W.2d 672, this court held:
(1) The theory of implied warranty of fitness, and the issue of proximate cause created a jury question and should have been submitted.
(2) There was sufficient evidence to justify submission to the jury on the question of contribution.
(3) The issue of strict liability raised a jury question and should not have been dismissed.
(4) The active versus passive negligence theory was properly dismissed.
Upon retrial of the case in the district court, the petition was amended so as to seek indemnity solely upon the theory of strict liability in tort. Trial to a jury was had and a verdict in the amount of $17,749.33 was returned in favor of Hawkeye, which amount fully indemnified Hawkeye. On Ford's cross-petition against the supplier of the brakes, Kelsey-Hayes, the jury found for Kelsey-Hayes and against Ford. Ford now appeals from both verdicts.
In its appeal, Ford asserts error in two divisions:
In Division I it asserts this is not a proper case for indemnity, alleging (a) Hawkeye could only seek indemnity by establishing the distinction of primary and secondary liability of the parties; (b) Hawkeye's liability arose due to the active negligence of its insured, and therefore is not entitled to indemnity since its insured was primarily, and not secondarily, liable; (c) there was no difference in the legal obligation owed to the injured party by the insured and its insurer, which distinction Ford contends is a prerequisite to indemnity; and (d) the jury in the trial of the case of Koppold v. Kolby and Tri-B Corporation found the active negligence of Kolby, Tri-B's driver, to be a proximate cause of the accident and resulting injuries and damages, and the litigation of that same issue by the trial court in the instant case is barred by the application of the doctrines of Res judicata and collateral estoppel.
In Division II of Ford's brief and argument. It is asserted the trial court erred in not submitting to the jury all the theories pleaded in Ford's cross-petition against Kelsey-Hayes, namely, breach of express and implied warranties, negligence and strict liability. The trial court submitted only the strict liability theory.
The factual background of the matter now before us is fully set out in the first appeal of this case, reported at 174 N.W.2d 672. For the purposes of this appeal, it is sufficient to say this action sounds solely in strict liability in tort based upon the allegation of Hawkeye that the absence of a 'hold-down nut' in the assembly of the brakes on the Ford truck caused the brakes to wear unevenly and resulted in the total failure of the brakes immediately prior to the collision with the rear of the coupled farm tractor and trailer. Such brake failure is alleged to be a proximate cause of the accident, and it is alleged the brakes were in a defective condition when they left the Ford Motor Company assembly plant.
I. We shall first dispose of the contention of Hawkeye that the notice of appeal filed by Ford in this case is defective and that this court does not have jurisdiction of the case. Hawkeye contends the notice of appeal requirements, Rule 336, Iowa Rules of Civil Procedure, were not met.
The notice of appeal in this matter is as follows:
and to:
KELSEY-HAYES COMPANY and AHLERS, COONEY, DORWEILER, ALLBEE & HAYNIE, Attorneys for Defendant to Cross-Petition
YOU, AND EACH OF YOU, ARE HEREBY NOTIFIED that the Defendant and Cross-Petitioner herein has appealed to the Supreme Court of the State of Iowa from each and every ruling adverse to the Defendant, and Cross-Petitioner during the progress of and hearing of the said case, and that said appeal will come on for hearing at the May, 1971, term of the Supreme Court of Iowa, or as soon thereafter as the same can be heard in its regular order in said Court.
Dated at Atlantic, Iowa, this 26th day of October, 1970.'
The pertinent provision of rule 336, R.C.P., is as follows:
In Rosmann v. Lawler, 257 Iowa 1292, 136 N.W.2d 513, this court dismissed an appeal where the notice of appeal contained the following verbiage, 'Plaintiff has appealed and does hereby appeal from the adverse ruling of the trial court and from all adverse rulings of the trial court in connection with such matter.'
In Rosmann, an action had been dismissed for failure to try the case within the time fixed by rule 215.1, R.C.P. Truly, in Rosmann the only ruling from which appeal was taken was the overruling of a motion for summary judgment, which of course can only be brought as an interlocutory appeal under rule 332, R.C.P. Plaintiff, in Rosmann, then sought to appeal the dismissal by filing the notice containing the language above set out. In the Rosmann opinion this court, quoting from State v. Fees, 250 Iowa 163, 164, 93 N.W.2d 103, 104, said, 'The Fees opinion holds: 'The notice here does not describe or identify the final judgment. The rule is that a notice of appeal must sufficiently describe or specify the judgment or order appealed from."
The Rosmann opinion then goes on to say (247 Iowa at 1294-1295, 136 N.W.2d at 515), 'The rule that prevails in Iowa seems to be the one generally recognized. 'As a general rule, the notice or citation should * * * describe the judgment, order, or decree appealed from so as to identify it sufficiently.' (citations) '* * * (T)he notice of appeal must always sufficiently describe or specify the judgment or order appealed from, so as to leave no doubt as to its identity."
We must now determine whether the notice of appeal by Ford is sufficient to satisfy the requirements of rule 336, R.C.P. So far this case has involved two trials, one previous appeal, and is now in its second appeal. In the prior trials and in the prior appeal, the parties are all identical and the theory of the case has remained basically the same. It is apparent to us there can be no possible mistake or misapprehension by any of the parties to the action as to the judgment from which the appeal is taken. Final judgment in the second of...
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