Krausnick v. Haegg Roofing Co.

CourtUnited States State Supreme Court of Iowa
Citation20 N.W.2d 432,236 Iowa 985
Docket Number46746.
PartiesKRAUSNICK v. HAEGG ROOFING CO. et al.
Decision Date13 November 1945

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 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 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.

This theory is that the owner of a motor vehicle may be held liable for a resulting injury to a third person upon the ground of negligence if he knowingly entrusts its operation to an inexperienced or incompetent driver. 42 C.J. 1078, Motor Vehicles § 836; Lufty v. Lockhart, 37 Ariz. 488, 295 P. 975; Elliott v. Harding, 107 Ohio St. 501, 140 N.E. 338, 36 A.L.R. 1128; Mitchell v. Churches, 119 Wash. 547, 206 P. 6, 36 A.L.R. 1132; Smith v. Nealey, 162 Wash. 160, 298 P. 345; 5 Am.Jur. Automobiles § 355, p. 696; Berry Automobiles, 6th Ed., § 1327. Other cases will be found cited in General Digest, Automobiles, k192(11).

This is on the principle that though the automobile may not be technically a dangerous instrumentality it is nevertheless one capable of doing great damage in the hands of an incompetent driver. Smith v. Nealey, supra, citing Berry on Automobiles, 3rd Ed., § 1040; Elliott v. Harding, supra; Mitchell v. Churches, supra; 5 Am.Jur. p. 696, note 18, citing cases.

In cases of the kind we are now discussing liability does not rest on the rule of respondeat superior, Elliott v. Harding, supra; Smith v. Nealey, supra; but upon the combined negligence of the owner and the driver, the owner's negligence consisting in the act of loaning the car to an incompetent driver and the latter's negligence in its operation. Lufty v. Lockhart, supra; Mitchell v. Churches, supra.

No Iowa case is cited in support of this theory and we have found none. However, it seems to be well established as a common law proposition and we must hold it is in effect here unless it has been abrogated by statute.

III. Appellee contends that the rule is 'inapplicable' in view of our consent statute, section 5037.09, Iowa Code 1939 (Sec. 5026, Iowa Code 1924) which provides: 'In all cases where damage is done by any car by reason of negligence of the driver, and driven with the consent of the owner, the owner of...

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