McDonald v. Robinson

• Decision Date: 05 April 1928
• Docket Number: No. 38557.,38557.
• Citation: 218 N.W. 625
• Parties: MCDONALD v. ROBINSON ET AL.
• Court: Iowa Supreme Court

218 N.W. 625

MCDONALD

v.ROBINSON ET AL.

No. 38557.^a1

Supreme Court of Iowa.

April 5, 1928.

Appeal from District Court, Linn County; F. O. Ellison, Judge.

Action for damages for personal injuries. The defendants Robinson and Max Padensky were participants in an automobile collision. As an alleged result of the collision, Padensky's car was deflected from its course, so that it came in contact with the plaintiff, who was a pedestrian upon the sidewalk. The defendant Dave Padensky was the owner of the car driven by Max, his son. The plaintiff, who was severely injured, has brought her action against the three defendants jointly. Defendant Robinson, before answer, moved to separate the causes of action on the ground that there was misjoinder. This motion was overruled. Upon trial to a jury, verdict for $8,500, was rendered against the defendants jointly and judgment entered thereon accordingly. The defendant Robinson has appealed. Reversed and remanded.C. C. Putnam, of Des Moines, for appellant.

Don Barnes, of Cedar Rapids, for appellee.

EVANS, J.

The collision between the two automobiles occurred near the center of an intersection of streets. These were Fourth street, extending north and south, and G avenue, extending east and west, in the city of Cedar Rapids. Robinson was driving westerly along the north side of G avenue; whereas Max Padensky was driving northerly along the center line of Fourth street. As a result of the collision, both cars were deflected from their course; the Padensky car moving to the northwest, and striking the sidewalk at the northwest corner of the intersection, and moving northerly along the west side of Fourth street for a distance of 56 feet from the corner of the intersection. At this corner the plaintiff, who had just crossed Fourth street, was stepping upon the sidewalk, when she was struck by the Padensky car. She was thrown to the ground and under the car as it moved northerly. She was dragged thereunder a distance of 56 feet, and sustained very serious injuries. The car of Robinson was either deflected, or by him turned toward the northeast. At the time it was brought to a stop it was facing northeast, and on the east side of Fourth street and close to the north line of G avenue. The petition charged that each car was being driven negligently, and that the collision resulted from the concurring negligence of both drivers. No intentional concert of action was alleged, nor did the evidence show any. On the contrary, the drivers were strangers to each other, and neither knew of the negligence of the other until the collision was inevitable.

The first and most important question presented to us is whether these defendants were jointly suable as for a joint liability. Robinson raised the question in the trial court by proper motion, and preserved his contention by proper record throughout the trial.

The contention for Robinson is that the liability of the tort-feasors, if any, cannot be joint, in the absence of concert between them in their respective tortious acts. On the other hand, the appellee contends that the rule invoked by the appellant Robinson is applicable to torts that are intentional, and not to those that are merely negligible. The question thus raised has abundant perplexity. The cases where the particular question has been raised and directly passed on are few, as compared with the number of cases where incidental reference has been made to the subject and passing dicta pronounced thereon, though the question itself was not decided nor presented for decision. Where the question has been directly presented for decision, a contrariety of decision has resulted in the different jurisdictions. In some courts (as in Massachusetts) the holding is that, where injury results from the concurring negligence of two or more tort-feasors, these become jointly liable to the injured person, regardless of any preceding concert of action. In other courts (as in Pennsylvania), the holding is that there can be no joint liability in such a case, unless there was some concert of action or purpose between the wrongdoers. Quite persuasive reasons can be, and are, advanced in support of both of these contradictory holdings. There are very many cases to be found in the reports where the plaintiff has impleaded jointly tort-feasors, whose concurring negligence resulted in alleged injury, and where the defendants failed to challenge the assertion of such right, and failed to raise the question in any way. For instance, the brief of appellee contains a very extended list of cases where the plaintiff predicated joint liability upon concurring negligence of tort-feasors. The reply brief of appellant reviews these cases, and shows that in the great majority of them the assertion of joint liability was not challenged by the defendants at all, and that the question therefore was not presented for decision, although involved in the case. The fact that there is so extensive a consensus of professional opinion that takes for granted the assertion of joint liability in such cases is of itself a fact of some significance in favor of the assertion. We shall not undertake herein to enter the boundless field of decisions or dicta in other jurisdictions, but shall confine ourselves in the main to our own cases, none of which have expressly decided the precise point now presented. What we have heretofore said on this precise question is largely in the way of dicta, and even these are not free from inconsistencies and perhaps contradictions. They do, however, indicate, we think, the trend of the judicial opinion in this state for many years.

The appellant lays some stress upon the case of Ramsey v. Railway Co., 135 Iowa, 329, 112 N. W. 798. In that case the plaintiff, while riding in a cab, had been injured by a collision between the cab and a street car. She sued both the cab company and the street car company, charging them jointly as for concurring negligence. The allegations of negligence were general and not specific. The instructions of the trial court submitted the issue of negligence of the street railway company in general terms, and without reference to any specific acts of negligence. This court reversed the judgment upon these instructions. The contention of the defendants in that case was that it was not negligent. The right of the plaintiff to charge a joint liability against it, if it was negligent, was not in any manner challenged. In the opinion we said:

“True, plaintiff alleged joint negligence in general terms, but this was controlled by the averment of the specific acts of negligence which followed. And the specific acts were such in 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. And no such accusation was suggested in pleading or evidence. So, too, while joint tort-feasors may be held jointly and severally liable, it is hardly conceivable that there should be such a thing as tort at once joint and separate.”

In Heisler v. Heisler, 151 Iowa, 503, 131 N. W. 676, an action by a husband against his parents-in-law for the alleged alienation of the affections of his wife, wherein the defendants were charged as for joint liability for such alienation, we said:

“The action is for an intentional, not merely a negligible, tort, and, in order to justify a verdict against both defendants, there must have been cooperation between them with the design to alienate Willie's affection. Where the concurrent negligence of two or more persons contribute to the harm, the tort feasors may be jointly sued, but, where the torts are intentional and independent of each other, though their combined influence may result in injury, it seems that the liability is not joint. Barton v. Barton [119 Mo. App. 507, 94 S. W. 574] supra. Even though both were sued, if a cause of action was made out against one only, the jury might have so found, and judgment have been entered accordingly. Young v. Gormley, 119 Iowa, 546 . When the record is examined in the light of these principles, it will be found that no cause of action was made out against Conrad Heisler.”

In Moore v. Fryman, 154 Iowa, 534, 134 N. W. 534, the defendants were sued jointly for fraud and false representations. The appellant places reliance upon what was said in that case as follows:

“No allegation of conspiracy was made in the first count of the petition, and the appellants contend that there was a misjoinder of parties and of causes of action because thereof. It is urged that in an action for deceit and false representations against several there can be no joint recovery in the absence of an allegation of conspiracy. It is undoubtedly true that a joint recovery can not be had against tort-feasors, where there is no concert of action or common intent, and their acts are separate as to time and place. But the rule is also well settled that joint liability does exist where the wrong is done by concert of action and common intent and purpose, and that there may be such concurrent action and co-operation as will create joint liability without proof of a conspiracy. La France v. Krayer et al., 42 Iowa, 143;Young v. Gormley, 119 Iowa, 546 ;Aughey v. Windrem, 137 Iowa, 315 ;Hinkley v. Oil & Pipe Line Co., 132 Iowa, 396 [107 N. W. 629, 119 Am. St. Rep. 564].”

The appellant relies also upon the language used by us in Tackaberry v. Sioux City Service Co., 154 Iowa, 358, 132 N. W. 945, 134 N. W. 1064, 40 L. R. A. (N. S.) 102. That was an action brought by the injured plaintiff against eighteen riparian owners, who had severally and independently to a greater or less degree built obstructions on the banks of a stream; the combined effect of which was to produce an overflow, which damaged the plaintiff. We held in that case that the defendants were not jointly liable, but that each was severally liable for his own wrong and the consequences of it....