Nelson v. Iowa-Illinois Gas & Elec. Co.

• Decision Date: 14 June 1966
• Docket Number: IOWA-ILLINOIS,No. 51845,51845
• Parties: Mary Jane NELSON, Administratrix of the Estate of Raymond Nelson, Deceased, Appellant, v.GAS AND ELECTRIC COMPANY and City Service Oil Co., Inc., Appellees.
• Court: Iowa Supreme Court

Page 289

143 N.W.2d 289

259 Iowa 101

Mary Jane NELSON, Administratrix of the Estate of Raymond Nelson, Deceased, Appellant, v. IOWA-ILLINOIS GAS AND ELECTRIC COMPANY and City Service Oil Co., Inc., Appellees.

No. 51845.

Supreme Court of Iowa.

June 14, 1966.

Robert L. Ulstad, Fort Dodge, for appellant.

Davis, Huebner, Johnson & Burt, Des Moines, for appellees.

GARFIELD, Chief Justice.

This appeal involves the jurisdiction of the district court to hear and determine an action for damages against an employer for death of its employee from an injury sustained in the course of his employment. The court held it was without jurisdiction. We agree.

Plaintiff, as administratrix of the estate of Raymond Nelson, deceased, brought this law action in district court against City Service Oil Company, Inc. (herein called defendant) and another to recover damages for his death. Defendant appeared specially for the sole purpose of attacking the court's jurisdiction on the ground it appears from the petition decedent was injured 'while in the employment of defendant' and in the course thereof; by reason of chapters 85, 86, and 87, Code, 1962, the only forum for the trial of issues arising from such injuries as between employer and employee is the Iowa Industrial Commissioner; the court is therefore without jurisdiction to determine such issues.

The petition contains the allegations the special appearance says it does and further alleges that while working under defendant's direction and control decedent was electrocuted when the boom of a crane operated by another came in contact with a high voltage electric line close to the work, also that the accident and death resulted from defendant's negligence in several particulars, first of which was in not furnishing decedent a safe place and means to perform his work.

After defendant's special appearance was filed but before it was sustained the petition was amended to allege decedent, while in the employment of defendant 'either as an employee or as an independent contractor' was electrocuted. Except for the insertion in the petition of these quoted words following 'while in the employment of defendant' it was not changed.

Upon this appeal plaintiff contends her decedent was excluded from coverage under the Workmen's Compensation Act because he was an independent contractor; the court had jurisdiction of the part of the amended petition which alleges decedent was an independent contractor; defendant was estopped to contend otherwise because it asserted before the industrial commissioner decedent was an independent contractor; and the allegation of the petition that decedent was such a contractor must be taken as true.

It is apparent the first two and the last of these contentions involve the sufficiency of the amendment to the petition which alleges in the alternative decedent was injured while in defendant's employment either as an employee or independent contractor.

I. Defendant's special appearance was evidently filed under Rule of Civil Procedure 66 which provides: 'A defendant may appear specially, for the sole purpose of attacking the jurisdiction of the court, * * *. The special appearance shall * * * state the grounds thereof. * * *.' R.C.P. 104(a) states want of jurisdiction of the subject matter may be raised by special appearance.

II. We consider first the sufficiency of the allegation of the amended petition that decedent was injured while either an employee of defendant or an independent contractor. We assume plaintiff was entitled to have her amendment considered although it was filed after the filing of the special appearance. We are satisfied the amendment to the petition adds nothing in legal effect to the original petition.

Unquestionably, as defendant concedes, an independent contractor is excluded from coverage under the workmen's compensation act. Section 85.61, 3, b so provides and a great many of our decisions recognize this. Thus if the petition had alleged decedent was injured while acting as an independent contractor the district court would have jurisdiction of the action. But, as stated, the allegation merely is decedent was either an employee or an independent contractor, one or the other. As we shall point out, under our decisions if he was an employee not excluded from coverage by the compensation act the court was without jurisdiction to hear such an action as this. This is the legal effect of the amended petition.

71 C.J.S. Pleading § 41, says in black type: 'In the absence of a statute or rule of procedure providing otherwise, material facts should not be alleged in the alternative; alternative allegations may be permitted under certain circumstances, although they will be construed against the pleader and will be treated as no stronger than the weakest alternative.' The text adds this (page 111): 'In view of these rules, if one alternative is bad, the entire pleading fails. This rule applies where alternative pleading is sanctioned by statute or rules of procedure unless the statute or rule provides that a bad alternative will not affect a good one.'

After restating the first of the above quotations, Id. § 54c, page 139, adds, 'This rule has been held to apply even in jurisdictions where the liberal rule of construction has been adopted.'

41 Am.Jur., Pleading, section 41, is to like effect. It reads: 'Alternative Averments. It is a well-established principle of pleading that the facts constituting the cause of action * * * should be stated by direct averments, and not by averments in the alternative, and, as a general rule, in the absence of statute specifically authorizing pleading in this manner, a violation of this rule vitiates the pleading. A pleading couched in alternative expressions, on demurrer, will be given that construction which is most unfavorable to the pleader, and where any one of the several averments is insufficient, the entire pleading is rendered bad.'

A note in Ann.Cas.1914A 1239 cites many decisions for substantially the rule last quoted.

Cornick v. Weir, 212 Iowa 715, 718, 720, 237 N.W. 245, 247, fully supports the views above expressed. The petition there alleged in the alternative defendant directors of a bank knew or, by the exercise of proper diligence, should have known the custom of the bank to use bonds of its patrons as collateral for its borrowings and that plaintiff's bonds were so used. The opinion thus states the legal effect of the petition:

'* * * When, as in this case, such a pleading is assailed by motion or demurrer, it must be considered as only a pleading of the latter alternative. The plaintiff must be judged by the weaker claim of his alternative pleading. If a demurrer is being considered, the alternative allegation is confessed only as to the weaker charge. The party who demurs only admits that the party 'by the exercise of a reasonable degree of care and prudence might have known.' In other words, the net result of the plaintiff's pleadings, * * * is to charge that the defendants, by the exercise of proper diligence, should have known that the things of which complaint is made existed or transpired.' Supporting precedents are cited.

Other decisions which support our holding the amendment here adds nothing in legal effect to the petition as filed include Pier v. Schultz, 243 Ind. 200, 182 N.E.2d 255, 259; Casey Pure Milk Co. v. Booth Fisheries Co., 124 Minn. 117, 144 N.W. 450, 51 L.R.A.,N.S., 640; State v. Western Union Tel. Co., 154 Ohio St. 511, 97 N.E.2d 2, 6 ('It is obvious that, where a petition alleges in the alternative two statements of fact, one of which is sufficient to constitute a cause of action and the other is not, a cause of action is not stated.'). See also State v. Kinkade, 241 Iowa 1259, 1263, 43 N.W.2d 736, 739.

The many holdings that on a direct attack a doubtful pleading is resolved against the pleader seem, by analogy, to have application here. Eaton v. Downey, 254 Iowa 573, 579, 118 N.W.2d 583, 586, and citations; Hahn v. Ford Motor Co., 256 Iowa 27, 29, 126 N.W.2d 350, 352; Winneshiek Mutual Ins. Ass'n v. Roach, 254 Iowa 354, 132 N.W.2d 436, 444.

It may be noted the rule that pleading in the alternative is bad does not apply where both pleaded alternatives--the weaker as well as the stronger--state a cause of action. 71 C.J.S., Pleading § 41; 41 Am.Jur., Pleading, section 41. This exception obviously has no application here.

Considering plaintiff's amended petition in the light of the authorities above referred to, it is apparent the claim decedent was injured while acting as an employee of defendant, in the course of his employment, is weaker than the alternative claim he was then an independent contractor. As before explained, under the decisions cited in Division III, infra, the district court was without jurisdiction to hear the former claim, but not the latter--if it had been pleaded directly. Since the alleged alternative adds nothing in legal effect to the claim made in the original petition we must hold the special appearance was properly sustained.

We do not overlook the Rules of Civil Procedure to which plaintiff calls attention. Rule 22, the principal one, provides: 'A single plaintiff may join in the same petition as many causes of action, legal or equitable, independent or alternative, as he may have against a single defendant.'

This rule is a recognition of a plaintiff's right, long recognized in Iowa, to plead in separate counts more than one cause of action, e.g., one count based on express contract and another on implied contract or quantum meruit. Weaver Constr. Co. v. Farmers National Bank, 253 Iowa 1280, 1291, 115 N.W.2d 804, 810, and citations; Connell v. Hays, 255 Iowa 261, 271, 122 N.W.2d 341, 347. Likewise specific negligence and res ipsa loquitur may be pleaded in separate counts. Eaves v. City of Ottumwa, 240 Iowa 956, 968, 969, 38 N.W.2d 761, 768, 11 A.L.R.2d 1164, and citations.

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