Overhouser v. Am. Cereal Co.

• Decision Date: 19 October 1905
• Citation: 128 Iowa 580,105 N.W. 113
• Parties: OVERHOUSER v. AMERICAN CEREAL CO. ET AL.
• Court: Iowa Supreme Court

128 Iowa 580

105 N.W. 113

OVERHOUSER

v.AMERICAN CEREAL CO. ET AL.

Supreme Court of Iowa.

Oct. 19, 1905.

Appeal from District Court, Linn County; B. H. Miller, Judge.

Action by plaintiff, as the administrator of the estate of W. L. Overhouser, deceased, to recover damages caused, as alleged, by negligence on the part of defendants, and resulting in the death of said W. L. Overhouser. The trial was to a jury, and the verdict was “in favor of the plaintiff and against the American Cereal Company, and for the defendant A. H. Connor & Co. as between A. H. Connor & Co. and the plaintiff.” There was judgment on the verdict as against the cereal company, and therefrom it appeals. The plaintiff appeals as against A. H. Connor & Co. Dismissed on plaintiff's appeal, Reversed on defendant's appeal.Jamison & Smyth, for plaintiff.

J. C. Cook and H. Loomis, for defendant Cereal Company.

Dawley, Hubbard & Wheeler, for defendants A. H. Connor & Co.

BISHOP, J.

This is the second appeal in this case. For the opinion on the former appeal, see 118 Iowa, 417, 92 N. W. 74. The negligence complained of, stated generally, is that the defendants permitted stone and rock to fall from their wagons upon a public street of the city of Cedar Rapids, and suffered and permitted such rock and stone to there remain, so that plaintiff's intestate, while riding a bicycle along said street, struck said rock and stone and was thrown to the pavement, and sustained injuries from which he died. The defendants joined in answer, denying specifically the allegations of the petition. At the close of all the evidence in the case, the defendant cereal company moved the court to instruct a verdict in its favor, one of the grounds therefor being that the evidence made it appear without conflict that the work in connection with which the rock and stone were dropped and permitted to remain in the street was being done by the defendants A. H. Connor & Co. as independent contractors; that the negligence complained of, if such there was, was chargeable solely to said A. H. Connor & Co. This motion was overruled, and thereupon the defendant cereal company requested the court to instruct the jury, not only that, if Connor & Co. were found to be independent contractors, said cereal company would be entitled to a verdict in its favor, but further defining the conditions under which, if found, the jury would be warranted in reaching the conclusion that the relationship of Connor & Co. to the work was in fact that of independent contractors. The requests thus made were refused. As bearing upon the subject-matter thereof, however, the court on its own motion gave the seventh instruction, whereby the jury was told, among other things, that if “Connor & Co. were independent contractors, having in charge the excavation of the stone and hauling the same * * * for the American Cereal Company.” then the cereal company would not be liable for the acts of Connor & Co. in permitting stone to drop and remain upon the street. If, however, “Connor & Co. were not independent contractors, but only the servants, agents, and employés of the cereal company,” then the cereal company would be liable for the acts of Connor & Co., etc. No other instruction touching the subject was given. The main contention for error on the part of the appellant cereal company is made to rest upon the refusal of the court to instruct as requested, and upon the giving of the seventh instruction without either defining the expression “independent contractor,” or pointing out the distinction, as related to the law of negligence, between an independent contractor on the one hand and a mere servant or employé on the other hand.

1. We may first dispose of a question of practice. The right of the cereal company to present the contention as made by it is challenged by plaintiff on the ground that, the subject-matter thereof not being within the issues (the answer being in effect a general denial), error cannot be predicated upon the refusal to instruct as requested. We think the point is without merit. The petition charges a joint tort, and the effect of the general denial was to put in direct issue the commission of such tort. And, as in cases where a joint tort is charged a recovery may be had upon proper proof as against either one or both of the tort feasors named as defendants, it follows, if for no other reason, that the general denial must be accepted as putting in issue the commission of the tort in favor of each of the defendants taken singly, as well as in favor of both taken jointly. Now, any evidence which tends to negative or disprove the matters of fact alleged in the petition is proper to be admitted under a general denial. Conversely stated, such is the rule of the statute, and it is the doctrine of all the cases. Code, § 3615; Johnson v. Pennell, 67 Iowa, 669, 25 N. W. 874. Here the defendant cereal company is a corporation. Whatever was done by it must have been done by its agents or servants. The effect of its answer, therefore, was to deny that the persons by whom the things actually done, as complained of, were its agents or servants. That it had the right defensively to make proof addressed to that issue is not open to doubt. And in our view there can be no good reason for saying that under such circumstances the defense may not be aided--or, for that matter, completely established--by pointing out the fact that the workmen whose carelessness gave rise to the charge of negligence were in truth the agents or servants of an independent third person. Proof of such fact would operate ex necessitate to completely negative the allegations of the petition. As supporting this conclusion, see the following cases: Babbage v. Church, 54 Iowa, 172, 6 N. W. 253;Fernbach v. Waterloo, 76 Iowa, 598, 41 N. W. 370;Scott v. Morse, 54 Iowa, 732, 6 N. W. 68, 7 N. W. 15;Wallace v. Robb, 37 Iowa, 192;Roemer v. Striker, 142 N. Y. 134, 36 N. E. 808.

Counsel for plaintiff seems to think that the case comes within the provisions of Code, § 3629, which are that “any defense * * * showing matter of justification, excuse, discharge or release, and any defense which admits the facts of the adverse pleading, but by some other matter seeks to avoid their legal effect, must be specially pleaded.” But here no matter of justification, etc., is relied upon, nor is any fact alleged in the petition admitted. On the contrary, every fact pleaded is met by a specific and positive denial. It becomes manifest, therefore, that the Code provision can have no application. The cases cited and...