Krausnick v. Haegg Roofing Co., 46746.

• Court: United States State Supreme Court of Iowa
• Citation: 20 N.W.2d 432,236 Iowa 985
• Docket Number: 46746.
• Parties: KRAUSNICK v. HAEGG ROOFING CO. et al.
• Decision Date: 13 November 1945

20 N.W.2d 432

236 Iowa 985

KRAUSNICK
v.
HAEGG ROOFING CO. et al.

No. 46746.

Supreme Court of Iowa

November 13, 1945

[20 N.W.2d 433]

[236 Iowa 986] L. D. Dennis, of Cedar Rapids, for appellant.

Elliott, Shuttleworth & Ingersoll, of Cedar Rapids, for appellee Haegg Roofing Company.

Crissman & Bleakley, of Cedar Rapids, for appellee William Seilhamer.

SMITH, Justice.

Count I of plaintiff's petition alleges that plaintiff's five year old intestate was killed on October 2, 1943, by a truck driven by defendant Seilhamer while intoxicated and with the consent of defendant Haegg Roofing Co., the owner thereof. The action as against the owner is predicated on such consent alone. Specifications of negligence of Seilhamer as the proximate cause of the claimed injury are of course included.

Count II alleges that defendant Seilhamer was an employee of his codefendant and that the claimed injury occurred as he was returning the truck to his employer's garage after work. It, too, contains allegations of negligence of Seilhamer as the proximate cause of the injury.

Count II also contained various allegations to the general effect: That defendant Seilhamer had been in the employ of defendant Haegg Roofing Co. for a number of years; that he was a man who often became intoxicated and was not a competent person to be in charge of or driving the truck; that defendant, Haegg Roofing Co., knew this fact, or in the exercise of reasonable diligence should have known it; that knowing it, said company was negligent in permitting him to drive the truck on the day in question; that it knew on the forenoon of said October 2, that its said employee on said day had been drinking intoxicating liquor and was partially intoxicated and not competent to be driving the truck and that on divers occasions he was in the habit of driving it for his own personal use; and that the negligence of Haegg Roofing Co. in all these respects combined with the other negligent acts alleged, was the proximate cause of the injury that resulted in the death of plaintiff's intestate.

These last enumerated allegations were on motion stricken from the petition and from this ruling plaintiff, having obtained [236 Iowa 987] permission under Rule 332, Iowa Rules of Civil Procedure, appeals. Haegg Roofing Co. will be referred to as appellee.

I. It will be observed Count II pleads a cause of action based on the theory of respondeat superior. Allegations of the relationship of master and servant and that the injury occurred while the servant was returning the truck to the owner's garage after work would be immaterial otherwise.

On the other hand, the stricken portions were quite immaterial to a cause of action based on the theory of imputed negligence because of the relationship of master and servant.

The cases cited by appellee are quite conclusive to the proposition that the master's liability to third persons for injuries [20 N.W.2d 434] negligently inflicted by the servant while in the course of his employment is based on the specific negligent acts of the servant being imputed to the master, and not on original negligence of the master in employing a careless and incompetent servant. See Black v. Hunt, 96 Conn. 663, 115 A. 429; Minot v. Snavely, 8 Cir., 172 F. 212, 19 Ann.Cas. 996; Denver City Tramway Co. v. Cowan, 51 Colo. 64, 116 P. 136; Grand Rapids & I. R. Co. v. Ellison, 117 Ind. 234, 20 N.E. 135.

We think the ruling of the court must be affirmed on the ground that the stricken portions embodied subject matter that was immaterial and irrelevant to the cause of action based on respondeat superior. Motion is the proper remedy for improper joinder of actions and the court properly struck the cause that was improperly joined. Rule 27(b) Iowa Rules of Civil Procedure.

II. But the motion to strike urged another ground, viz., that the stricken portions of the petition constituted an attempt to plead a theory of liability 'unknown to the law.' The ruling of the court was general and did not reveal upon what ground it was based. An unqualified affirmance here might be construed as sustaining this ground.

The argument of appellant on appeal is directed principally to this attack. He argues for a theory of liability entirely distinct from that pleaded in Count I and also entirely distinct from one dependent on the relationship of master and servant or principal and agent.

[236 Iowa 988] This theory is that the owner of a motor vehicle may be held liable for a resulting injury to a third person...