Iowa Power & Light Co. v. Abild Const. Co.

• Decision Date: 14 July 1966
• Docket Number: No. 51665,51665
• Citation: 144 N.W.2d 303,259 Iowa 314
• Parties: IOWA POWER AND LIGHT COMPANY, Appellant, v. ABILD CONSTRUCTION COMPANY, Appellee.
• Court: Iowa Supreme Court

Page 303

144 N.W.2d 303

259 Iowa 314

IOWA POWER AND LIGHT COMPANY, Appellant, v. ABILD CONSTRUCTION COMPANY, Appellee.

No. 51665.

Supreme Court of Iowa.

July 14, 1966.

Duncan, Jones, Riley & Davis, Des Moines, for appellant.

Tolbert C. Moore, Bradshaw, Fowler, Proctor & Fairgrave, and Gibson, Stewart & Garrett, Des Moines, for appellee.

STUART, Justice.

This is an action for indemnity or contribution in which Iowa Power and Light Company, hereinafter referred to as Ipalco, seeks to recover all or one-half of $177,090.79 which it paid to settle a judgment rendered against it in a suit for personal injuries sustained by Glenn Visser. He was severely injured while working as an employee of Abild Construction Company on the construction of a grain storage building when an angle iron he was holding came into contact with a 13,000 volt power line belonging to Ipalco. It is conceded the amount, which includes the cost of defense, is reasonable.

Action was brought in four counts. Count I asked for indemnity on the ground that Visser's injury was caused by Abild's primary and active negligence. Count II sought contribution from Abild on the ground that its negligence concurred with that of Ipalco to produce the injury. Count III sought indemnity on the ground that Abild breached a duty to Ipalco by failing to give notice when construction work neared the electric line as agreed. Count IV sought contribution on the same ground. The trial court refused to submit Counts I, II and IV to the jury and submitted Count III on the theory of breach of contract. The jury returned a verdict for defendant on Count III. We conclude the trial court was correct in refusing to submit Counts I, II and IV, but erred in the manner in which Count III was submitted. Several errors are urged and pertinent facts will be presented as each error is discussed.

The main issue on this appeal is the effect of the Workmen's Compensation Law on an action of this kind. The trial court applied the 'common liability' rule and held the claims for noncontractual indemnity and common law contribution were barred.

I. We shall first consider the effect of the Iowa Workmen's Compensation Law on the right of equitable contribution. Since Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23, 60 A.L.R.2d 1354, we have been among the ever growing number of jurisdictions which permit contribution between joint tort-feasors where there was no intentional wrong, moral turpitude or concert of action. Hawkeye-Security Ins. Co. v. Lowe Construction Co., 251 Iowa 27, 31, 99 N.W.2d 421, 425; Anno. 60 A.L.R.2d 1366, 1377. We have followed the majority rule and have conditioned this right 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. Co. of Wis. v. Griffin Construction Co., Ky., 280 S.W.2d 179, 184, 53 A.L.R.2d 967; Zotta v. Otis Elevator Co., 64 N.J.Super. 344, 165 A.2d 840, 842. Anno. 60 A.L.R.2d 1366, 1384, 19 A.L.R.2d 1003, 53 A.L.R.2d 979. 'Common liability has been conceived as a liability which is enforceable against each tort feasor individually.' Harper and James, The Law of Torts, Vol. I, § 10.2, p. 718.

Ipalco recognizes we have applied the common liability rule as a basis for recovery-over in the form of contribution but urges us to abandon the rule and allow equitable contribution between joint tort-feasors on proof of concurrent negligence and proximate cause. The effect of such change is readily apparent in instances like the one before us. Defendant employer, one of the parties alleged to be guilty of concurrent negligence, has a special defense to an action by the injured third party. Its liability to its employee, is governed by the Iowa Workmen's Compensation Law and is not dependent upon negligence. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 387, 101 N.W.2d 167. The same act deprives the employee of the right to sue it for damages. 1962 Code of Iowa, § 85.20; Bridgmon v. Kirby Oil Industries Inc., 250 Iowa 229, 231, 93 N.W.2d 771. Thus there can be no common liability between Abild and Ipalco and application of that rule deprives Ipalco of the opportunity to secure contribution from Abild. If the test were as urged by Ipalco, proof of concurrent negligence which was the proximate cause of the injury would permit contribution in spite of the Workmen's Compensation Law.

There are arguments for both rules which, when considered alone, sound irresistible. An employer can complain with considerable cogency the net result of a rule permitting contribution is to put money in the employee's pocket which has left the employer's pocket in spite of a plain statement that the employer's liability for a compensable injury shall be limited to compensation payments. At the same time a third party can argue with equal cogency that it is unfair to subject him to the entire damages when he would be entitled to contribution but for the sheer chance that the other parties happened to be under a compensation act. 'Why should he, a stranger to the compensation system, subsidize that system by assuming liabilities he could normally shift to or share with the employer?' Larson's Workmen's Compensation Law, § 76.10, p. 229.

The rights of these two parties whose negligence is alleged to have concurred to cause an injury are in direct conflict. Anomalous situations arise from the application of either rule. Under the common liability rule an employer is better off if his negligence concurs with that of another in causing an injury to an employee than he would be if there was no negligence at all. He may be entitled to recoup his payments under Workmen's Compensation from the amount received by an employee from the third party, who, at the same time, is denied contribution. If no negligence were involved, he would be required to pay compensation without reimbursement. Employers Mutual Liability Ins. Co. of Wis. v. Griffin Construction Co., (Ky.), 280 S.W.2d 179, 185, 53 A.L.R.2d 967.

If we approve of a rule permitting contribution on proof of concurrent negligence and proximate cause, the employer would be better off if the accident resulted solely from his negligence than he would be if it merely concurred with the negligence of another. His liability would be determined by the Workmen's Compensation Law and there would be no joint tort-feasor to seek contribution. Such rule would also permit an injured employee to recover indirectly from his employer for injuries when he could not do so directly. A special defense would be lost merely because the employer's negligence concurred with that of another.

We have found no jurisdictions other than Pennsylvania and Maine which have approved contribution in instances where there was no common liability. In Puller v. Puller, 380 Pa. 219, 110 A.2d 175, 177, the Pennsylvania court said: '* * * it is established in our own State that a tort-feasor has a right to contribution against a joint tort-feasor even though the judgment creditor be the latter's spouse, parent, or minor child; in other words, a tort-feasor may recover such contribution even though, for some reason, the plaintiff who has obtained a judgment against both of them is precluded from enforcing liability thereunder against the joint tort-feasor: (Citing cases). The theory is that as between the two tort-feasors the contribution is not a recovery for the tort but the enforcement of an equitable duty to share liability for the wrong done.'

It is interesting to note, however, that the husband's insurance company was not required to make the contribution because injury to members of the family were excluded under the policy.

The Maine court in Bedell v. Reagen, 159 Me. 292, 192 A.2d 24, permitted contribution from the husband of an injured wife. Much attention was given the special defense based on the matrimonial relationship and the court concluded the rationale supporting the disability of reciprocal spouses as opposing litigants must give way before the penalty thereby imposed on a third party. While the analogy between this special defense and that of a compensable injury under the Workmen's Compensation Laws is appropriate, the rationale back of the two special defenses is entirely different. Maine might apply the same rule if an employer-employee relationship were involved, but they would have to answer arguments made here which could not have been advanced in Bedell v. Reagen.

Neither rule can be supported with irrefutable logic. However, it must be remembered that not too long ago a tort-feasor's right to contribution under any circumstance was doubtful. It is not unreasonable, therefore, to limit contribution to those instances in which the other tort-feasor does not have a special defense against an action by the injured party. '* * * it is the same system of jurisprudence which gives the right of contribution which prescribes the terms on which the remedy is available.' Allied Mutual casualty Co. v. Long, 252 Iowa 829, 835, 107 N.W.2d 682, 685.

An overwhelming majority of the jurisdictions follow the rule of common liability. The situation is not so one-sided we are persuaded we should abandon the majority rule for one which seems to have at least as many incongruities. 'A situation like this ought to be dealt with legislatively. It is rather inconsiderate to force courts to speculate about legislative intentions on the strength of statutory language in framing which the draftsman had not the remotest trace of the present questions in their minds. The legislature should face squarely the question whether the third party who happens to be so unfortunate as to get tangled up with a compensable injury should, so to speak, individually subsidize the compensation system by bearing alone a burden which...