Poyzer v. McGraw

• Citation: 360 N.W.2d 748
• Decision Date: 16 January 1985
• Docket Number: No. 83-1353,83-1353
• Parties: Jay L. POYZER, Appellee, v. Dorothy McGRAW, Dale McGraw, and Verle McGraw, Appellants.
• Court: United States State Supreme Court of Iowa

Page 748

360 N.W.2d 748

Jay L. POYZER, Appellee, v. Dorothy McGRAW, Dale McGraw, and Verle McGraw, Appellants.

No. 83-1353.

Supreme Court of Iowa.

Jan. 16, 1985.

Thomas D. Hanson and Barry A. Russell of Hanson, Bjork & Russell, Des Moines, for appellants.

Francis Fitzgibbons, Joseph L. Fitzgibbons and Harold W. White of Fitzgibbons Bros., Estherville, for appellee.

Considered by HARRIS, P.J., and McGIVERIN, LARSON, SCHULTZ, and WOLLE, JJ.

HARRIS, Justice.

This was a personal injury suit by an employee of a farm partnership. The worker was seriously injured by a gas explosion and fire in a house furnished to him as a part of his employment. The partners defended in part on the ground that plaintiff's exclusive remedy was workers' compensation. See Iowa Code section 85.20 (1983). The case was however submitted on the theory that the employing partnership was a separate entity and that the individual partners could be sued as third parties. After the jury allowed a substantial recovery, we filed our opinion in Carlson v. Carlson, 346 N.W.2d 525 (Iowa 1984). In Carlson, we adopted the view expounded by defendant:

... Iowa Code section 85.20 precludes an injured employee ... from suing a partner in an independent tort action for his injuries received during the course of his employment for the partnership.

Id. at 527.

In view of our holding in Carlson the question becomes whether the special verdicts reached by the jury were sufficient to preserve an award against a non-partner. For reasons we shall explain our answer is no. We reverse the judgment of the trial court and remand in part for a new trial.

Defendants Dale and Dorothy McGraw are husband and wife. Defendant Verle McGraw is their son. Dale and Verle are partners in a hog raising and farming operation. Dorothy is not a partner but does own a farm which was rented by the partnership and on which the partnership operation was in part conducted. A tenant house was situated on Dorothy's farm and was made available as a dwelling for partnership employees. It was highly disputed at trial whether or not Dorothy retained or exercised any dominion over the house.

After plaintiff was hired as a partnership employee he was assigned the house owned by Dorothy as a dwelling for him and his family. It had been vacated about a month before by a previous employee. On the evening of November 24, 1979, plaintiff moved into the home. Because heat was needed for the home, plaintiff went across the road to the house of Verle for assistance in lighting the furnace. Verle accompanied plaintiff to the house, turned on the propane gas source at the adjacent tank and succeeded in lighting the furnace. It did not occur to Verle to check the kitchen where a gas outlet from the same propane tank was provided for a cook stove.

It happened that the prior employee-tenant, after shutting off the propane tank, had removed his kitchen stove without capping the propane line at the kitchen outlet. When the tank was again turned on to provide heat for the furnace, gas leaked directly into the kitchen. As a result of the leaking gas there was an explosion and fire during the early hours of the next day. Plaintiff's injuries resulted.

Although a purist might challenge the characterization the case was at least in part submitted to the jury by special verdicts under Iowa rule of civil procedure 205. This rule is our counterpart to federal rule 49(a). There was a deviation from the usual special verdict procedure in that there were also special interrogatories under Iowa rule of civil procedure 206 and, unnecessarily, a recapitulation by the jury of its findings by general verdict forms.

The jury found liability on the part of each defendant. It apportioned responsibility thirty percent to Dorothy, thirty percent to Dale, and forty percent to Verle. By way of special interrogatories the jury found both Dale and Verle were agents of Dorothy in the operation and maintenance of the residence. The jury also found plaintiff should recover on the theory of breach of implied warranty of habitability and separately found that he should recover on the theory of violation of a landlord's duty. Finally, the jury specified that none of the recoveries against Dale or against Verle were based on either's role as partner.

I. Because of our holding in Carlson, the judgments against Dale and Verle must be set aside. Plaintiff argues the judgment should nevertheless stand against Dorothy. If true, this would take on considerably more significance than if other defendants shared in payment of the judgment. Under our holding in Rozevink v. Faris, 342 N.W.2d 845 (Iowa 1983) Dorothy would become liable for all plaintiff's injuries:

Were we to eliminate joint and several liability as the defendant advocates, the burden of the insolvent or immune defendant would fall on the plaintiff; in that circumstance, plaintiff's damages would be reduced beyond the percentage of fault attributable to him. We do not believe the doctrine of comparative negligence requires this further reduction. Nor do we believe this burden is the price plaintiffs must pay for being relieved of the contributory negligence as bar. The quid pro quo is the reduction of plaintiff's damages.

342 N.W.2d at 850 (quoting Coney v. J.L.G. Industries, Inc., 97 Ill.2d 104, 123, 73 Ill.Dec. 337, 454 N.E.2d 197, 205 (1983)) (emphasis in original).

Plaintiff strenuously argues that the special findings of the jury are ample for application of Rozevink, resulting in a judgment against Dorothy for the full $770,000 awarded by the jury. Dorothy points to her assignments of error in support of her assertion that no judgment can stand against her.

II. One of plaintiff's theories of Dorothy's liability was grounded on Iowa's landlord tenant act. Iowa Code Ch. 562A (1983). We know from a special finding that the jury based its assessment against Dorothy in part on this theory.

Dorothy challenges this submission on two bases. First, she thinks the situation falls under either or both of two statutory exclusions. See § 562A.5(5) (occupancy by an employee of a landlord whose right to occupancy is conditional upon employment in and about the premises) and § 562A.5(7) (occupancy under rental agreement covering premises used by occupant primarily for agricultural purposes). Dorothy's alternative challenge to the chapter's appropriateness rests on the statutory definitions. She points out that, in order to qualify as a "tenant" under section 562A.6(13), plaintiff's occupancy had to be under a "rental agreement." "Rental agreement" is defined in sections 562A.6(9). It can be either oral or written, and must embody "the terms and conditions concerning the use and occupancy of [the] dwelling ... and premises."

We pass Dorothy's first challenge to submission of the chapter 562A theory and accept her second one. Plaintiff had no agreement with Dorothy; his agreement was with the partnership. We cannot stretch the facts to find plaintiff had a second, separate "rental agreement" with Dorothy. Recovery cannot be allowed against Dorothy under chapter 562A.

III. Over Dorothy's objection, the trial court also submitted a theory of implied warranty of habitability. This theory was based on our holding in Mease v. Fox, 200 N.W.2d 791, 796 (Iowa 1972) ("... the landlord impliedly warrants at the outset of the lease that there are no latent defects in facilities and utilities vital to the use of the premises for residential purposes [and warrants to] maintain habitability of the dwelling.")

This theory was also inappropriate. The Mease theory, which has since been complemented by chapter 562A, presupposes a leasehold and a landlord-tenant relationship. As explained, plaintiff was the tenant of the partnership and not Dorothy.

It was error to submit the Mease implied warranty theory. Our determination makes it unnecessary for us to consider Dorothy's claim that breach of the implied warranty under Mease will not support a damage award for personal injuries.

IV. We also agree with Dorothy's contention that there was no substantial evidence of an agency relationship between her and the partnership. See Brown v. Schmitz, 237 Iowa 418, 424, 22 N.W.2d 340, 343 (1946). (Agency results from manifestation of consent by one person that another shall act for and be subject to the control of the former.) We find no evidence, either direct or circumstantial, of an understanding that the partners would be subject to Dorothy's control.

The only theory for which we can find a basis for Dorothy's liability was on plaintiff's claim that she was negligent. There was ample evidence that the explosion resulted from the negligence of whoever controlled the premises. An owner of real estate who retains control of the premises owes the duty of due care to an invitee. Coleman v. Hall, 161 N.W.2d 329, 333 (Iowa 1968) Control is a necessary condition for any liability for breach of this duty. Shill v. Careage Corp., 353 N.W.2d 416, 420 (Iowa 1984).

Dorothy and both partners deny she retained any control over the dwelling and the jury might well have agreed with the denial. Plaintiff's evidence to the contrary consisted of only three things.

Plaintiff's mother testified that, on the morning following the explosion, Dorothy said she had been measuring and preparing curtains for the dwelling. Another witness testified Dorothy told him she had been in the house the previous week for the same purpose. Dorothy herself testified without denying her work on the curtains and drapes.

Significantly, Dorothy testified that the prior tenants were people she assumed would clean the house properly. She did so to explain why she didn't inspect the property before plaintiff moved in. The jury could deduce from her testimony that it was only because of her respect for the prior tenants that she did not inspect the property.

There was more. Dorothy filed and later withdrew a pleading admitting plain...