McDonald v. Robinson

• Decision Date: 05 April 1928
• Docket Number: 38557
• Citation: 224 N.W. 820,207 Iowa 1293
• Parties: ROSE MCDONALD, Appellee, v. F. W. ROBINSON, Appellant, et al
• Court: Iowa Supreme Court

224 N.W. 820

207 Iowa 1293

ROSE MCDONALD, Appellee, v. F. W. ROBINSON, Appellant, et al

No. 38557

Supreme Court of Iowa, Des Moines

April 5, 1928

OPINION ON REHEARING APRIL 2, 1929.

Appeal from Linn District Court.--F. O. ELLISON, Judge.

Action at law against alleged joint tort-feasors, to recover damages for personal injuries. The jury returned a verdict in favor of the plaintiff against both defendants, and judgment was so entered thereon. Separate appeals have been prosecuted by Robinson and the other defendants, which were separately submitted in this court. They will be so disposed of.

Affirmed.

C. C Putnam, for appellant.

Don Barnes, for appellee.

STEVENS J. ALBERT, C. J., and EVANS, FAVILLE, MORLING, KINDIG, and WAGNER, JJ., concur.

OPINION

STEVENS, J.

I.

The injuries of which appellee complains were received by her near the northwest corner of the intersection of Fourth Street and Avenue G in the city of Cedar Rapids, and occurred in the following manner: Avenue G lies east and west, and Fourth Street north and south. Appellant Robinson was driving his car westerly along the north side of Avenue G, and Max Padzensky, the son of Dave, who owned the car, was driving his car northerly along the center line of Fourth Street. When near the center of the intersection, the automobiles collided, and as a result, became interlocked. They were thrown out of their course toward the northwest of the intersection. The Padzensky car struck appellee near the corner of the curbing, knocked her down, and she was dragged under the car until it was stopped, 56 feet farther north. After proceeding northward from the corner of the curbing, the cars became separated, and the Robinson car was stopped on the opposite side of the street. Her injuries were serious, and, she claims, permanent. The petition alleged that each car was being negligently driven, and that the injury resulted from the concurrent negligence of the two drivers.

The chief ground of error alleged by appellant--to wit, that there is a misjoinder of causes of action and of parties--was raised at every step of the proceeding and in every way known to the profession. All, of course, concede that joint tort-feasors, properly so defined, may be sued jointly, and a joint judgment recovered against them. The point of divergence has its origin in other propositions, on which the courts are somewhat divided.

It has been held in a few jurisdictions that, if the plaintiff allege a joint liability, he must sustain the allegation by proof, or fail. Livesay v. First Nat. Bank, 36 Colo. 526 (86 P. 102); Wiest v. Electric Traction Co., 200 Pa. 148 (49 A. 891). This rule was announced by this court in an early decision (Barnes & Son v. Ennenga, 53 Iowa 497, 5 N.W. 597), but was later disapproved. Boswell & Tobin v. Gates, 56 Iowa 143, 8 N.W. 809; Yocum v. Husted, 185 Iowa 119, 167 N.W. 663; State v. McAninch, 172 Iowa 96, 154 N.W. 399. This court has adopted the rule generally recognized by the authorities, and now holds that recovery against joint tort-feasors may be either joint or several. The real point of controversy between counsel, when carefully analyzed, is as to what wrongful or tortious acts are necessary, to render two or more persons joint tort-feasors. A common intent, purpose, and design on the part of the wrongdoers to do a particular wrong or injury,--as, for example, where a conspiracy is charged,--is not always essential. There is a large class of cases in which joint liability may exist, from which the element of intent and unity of design and purpose is wholly absent. If the acts of two or more persons concur in contributing to and causing an accident, and but for such concurrence the accident would not have happened, the injured person may sue the actors jointly or severally, and recover against one or all, according to the proven or admitted facts of the case. Boswell & Tobin v. Gates, 56 Iowa 143, 8 N.W. 809; Lull v. Anamosa Nat. Bank, 110 Iowa 537, 81 N.W. 784; McCann v. Clark, 166 Iowa 705, 148 N.W. 1025; Yocum v. Husted, 185 Iowa 119, 167 N.W. 663; Jahr v. Steffen, 187 Iowa 168, 174 N.W. 109; Dickson v. Young, 202 Iowa 378, 210 N.W. 452.

This rule has the support of the great weight of authority, as a careful reading of the following decisions from other jurisdictions will disclose: Sweet v. Perkins, 196 N.Y. 482 (90 N.E. 50); Fraser v. Flanders, 248 Mass. 62 (142 N.E. 836); Feneff v. Boston & M. Railroad, 196 Mass. 575 (82 N.E. 705); Consolidated Ice M. Co. v. Keifer, 134 Ill. 481 (25 N.E. 799); Starcher v. South Penn Oil Co., 81 W.Va. 587 (95 S.E. 28); Avery v. Wallace, 98 Okla. 155 (224 P. 515); Howard v. Union Traction Co., 195 Pa. 391 (45 A. 1076); Cleveland, C. C. & St. L. R. Co. v. Hilligoss, 171 Ind. 417 (86 N.E. 485); McGregor v. Reid, Murdoch & Co., 178 Ill. 464 (53 N.E. 323); Swayzee v. City of Augusta, 113 Kan. 658 (216 P. 265); Johnson v. Missouri Pac. R. Co., 167 Ark. 660 (269 S.W. 67); West v. Jaloff, 113 Ore. 184 (232 P. 642); Smith v. Yellow Cab Co., 285 Pa. 229 (132 A. 124); Tobin v. City of Seattle, 127 Wash. 664 (221 P. 583); Koehn v. City of Hastings, 114 Neb. 106 (206 N.W. 19); Gooch v. Georgia Marble Co., 151 Ga. 462 (107 S.E. 47); Weinberg Co. v. Bixby, 185 Cal. 87 (196 P. 25); Klauder v. McGrath, 35 Pa. 128. Elaboration of this doctrine, in the light of the foregoing cases, is unnecessary.

Our attention is called by appellant to a few decisions of this court and of other jurisdictions, which, it is claimed, announce a different rule. The apparent conflict in nearly all of the cases which are referred to, and which will be presently cited, really disappears when the facts upon which the respective decisions are rested are carefully analyzed. There is also present in the discussion of the cases relied upon the not infrequent divergent views of the writers of the individual opinions as to what constitutes concurring acts which cause an injury to an innocent person, for which liability may be shown. Among the decisions of this court cited by counsel are Harley v. Merrill Brick Co., 83 Iowa 73, 48 N.W. 1000; Loughran v. City of Des Moines, 72 Iowa 382, 34 N.W. 172; Bowman v. Humphrey, 132 Iowa 234, 109 N.W. 714.

In each of the cited cases, the acts charged were wholly independent of each other, and without concurrence or concert. They each deal with alleged nuisances. While this may not be a distinct basis for differentiation in the rule, it does somewhat illustrate the distinction between the doctrine of the cases relied upon by appellant and those holding to the rule of joint and several liability, previously referred to. Nuisance cases have apparently been given a separate classification. To like effect, and as illustrative of the distinction, are the following decisions from other jurisdictions: Brose v. Twin Falls Land & Water Co., 24 Idaho 266 (133 P. 673); Bonte v. Postel, 109 Ky. 64 (51 L. R. A. 187, 58 S.W. 536); Howard v. Union Traction Co., supra; Little Schuylkill Navigation, R. & C. Co. v. Richards's Admr., 57 Pa. 142 (98 Am. Dec. 209); Miller v. Highland Ditch Co., 87 Cal. 430 (25 P. 550); Verheyen v. Dewey, 27 Idaho 1 (146 P. 1116); Watson v. Pyramid Oil Co., 198 Ky. 135 (248 S.W. 227); Sellick v. Hall, 47 Conn. 260.

The question here to be decided is, Was there such concurrence of negligent acts on the part of appellant and Max Padzensky which united and concurred to produce the injury complained of, as to render them jointly or severally liable? We think there was. The jury may well have found that both defendants were negligent, and it must have found that, but for the concurrence of such negligence, the injury to appellee could not possibly have happened.

It was said by the New York Court of Appeals in Sweet v. Perkins, 196 N.Y. 482 (90 N.E. 50), that:

"Where concurrence in causes is charged, the test is, simply, could the accident have happened without their co-operation?"

The injury in this case was indivisible. There was no possible way by which it could be said that the negligence of one or of the other of the defendants was the sole or proximate cause thereof.

It is quite strenuously urged by appellant that numerous decisions of this court, in addition to those already referred to, sustain his contention. The first case referred to is Ramsey v. Cedar Rapids & M. C. R. Co., 135 Iowa 329, 112 N.W. 798. It must be confessed that the discussion in the opinion in this case is somewhat inaccurate, and possibly misleading. The conclusion reached is apparently sound. The petition in the Ramsey case contained general allegations of joint negligence, but, as stated in the opinion, these allegations were controlled by the averment of specific acts of negligence which followed. The court further declared that the specific acts charged were of such a character as to forbid any idea of joinder, except on the theory that the accident was brought about willfully, and as the result of concerted action. Continuing, the court said: "* * * no such accusation was suggested in pleading or evidence."

Neither Heisler v. Heisler, 151 Iowa 503, 131 N.W. 676, nor Moore v. Fryman, 154 Iowa 534, 134 N.W. 534, is in point, or in any particular inconsistent with the rule already announced.

In Tackaberry Co. v. Sioux City Service Co., 154 Iowa 358, 132 N.W. 945, the rule of joint liability is recognized. This case falls within the rule applicable to cases of nuisance by the pollution of streams or the obstruction of the same, or the creation of smoke or foul-smelling gases.

The implication sought to be drawn by appellant from Daggy v Miller, 180 Iowa 1146, 162 N.W. 854, is far-fetched. This case not only announced, but followed, the rule applicable to the present controversy. If there is any language in ...