Manley v. Paysen

• Decision Date: 25 October 1932
• Docket Number: No. 41321.,41321.
• Citation: 244 N.W. 863,215 Iowa 146
• Parties: MANLEY v. PAYSEN ET AL.
• Court: Iowa Supreme Court

215 Iowa 146

244 N.W. 863

MANLEY

v.PAYSEN ET AL.

No. 41321.

Supreme Court of Iowa.

Oct. 25, 1932.

Appeal from District Court, Clinton County; William W. Scott, Judge.

This is an appeal by the defendants from an order of the district court overruling an application by the defendants, jointly sued, for separate trials.

Reversed.Wolfe, Wolfe & Claussen, of Clinton, for appellant Salmon Manley.

Ernest L. Miller, of Clinton, for appellant Chris Paysen.

Sutton & Sutton and E. C. Halbach, all of Clinton, for appellee.

EVANS, J.

The plaintiff brings her action as executrix of the estate of Daniel Manley, who was accidentally killed in an automobile collision. Her petition discloses that the decedent was riding with his brother, Salmon Manley, in his automobile and as his guest; that they were driving westerly upon the Lincoln Highway; that some distance ahead of them on the same highway and going in the same direction the defendant Paysen was driving his automobile; that Paysen, while driving on the north side of the highway, turned to the left to enter his field on the south side of the highway; that, while he was so turning across the highway, he was overtaken by the Manley automobile; and that a collision between the two automobiles then and there occurred, which resulted in the death of Daniel Manley.

Her petition charges that Salmon Manley was guilty of reckless driving in that he was driving at an excessive rate of speed and without due caution; that the defendant Paysen was guilty of negligence resulting in the injury in that he gave no warning of his purpose to stop or to turn to the left upon the highway.

The defendants answered separately. The answer of defendant Manley admitted that the decedent was blameless; denied his own recklessness; and averred that the defendant Paysen was negligent as charged in the petition and that his negligence was the sole cause of the injury. The answer of defendant Paysen denied negligence on his own part; averred that his codefendant Salmon Manley was guilty of recklessness, as charged in the petition and averred that such recklessness was the sole cause of the collision; he denied also that the deceased was a guest of his brother, and averred that they were both engaged in a common enterprise and that both were jointly responsible for the recklessness of the driving. This defendant also filed a counterclaim against the estate of the decedent for damages sustained by himself from such collision.

Paysen in the first instance filed an application that he be allowed a separate trial. Later a like motion was filed by the other defendant. The general ground of Paysen's application was that the mutual interests of the two defendants were hostile, and that the conflict of issues mutually tendered by them would work persistently against co-operation between them, and that the applicant could not obtain a fair trial before the jury unless separate trial was granted. Such is the general nature of the question presented for our consideration.

[1] 1. There was no prior concert of action between the two defendants. They were suable jointly for their concurring negligences as alleged in the petition regardless of prior concert of action between them. The statute (Code 1931, § 11437), however, expressly authorizes the court to grant separate trials in such a case. Did the court err in refusing to do so? It will be noted that they have nothing in common in the defenses presented. Manley admits that his brother was his guest; Paysen denies it. Manley denies his own recklessness; Paysen avers it. Manley avers that Paysen was negligent; Paysen denies it. Paysen avers that the decedent and the defendant Manley were jointly engaged in the same adventure; Manley denies it.

To these various hostilities between them is added the further fact that the plaintiff's suit against them is not based upon the same legal liability. It will avail the plaintiff nothing, as against defendant Manley, to show that he was negligent. She must show that he was guilty of reckless driving. The statute (Code 1931, § 5026-b1) exonerates him from liability for negligence so far as the decedent was concerned. So far as Paysen is concerned it would be a complete defense for him to show that the negligence of defendant Manley was the sole cause of the accident.

This is a sufficient indication of the very complex and abstruse questions, which would have to be submitted to the jury in the event of a joint trial. Furthermore in a joint trial, co-operation between the defendants must be enforced. Manifestly it cannot be voluntary where their actual interests are so adverse. In the exercise of peremptory challenges, one defendant may wish to discharge a juror and the other may wish to retain him. Either one may block the peremptory challenges desired by the other. We think the case is one wherein the substantial rights of one defendant or the other would be materially affected by a joint trial. Unless the situation presented herein is sufficient warrant for separate trial, we can hardly conceive of any function to be served by the statute (Code 1931, § 11437) which authorizes the court to grant separate trials.

The family relationship existing between the defendant Manley and the decedent and the plaintiff is a circumstance proper to be considered by the court in the consideration of the application. This family relationship presumably has its...