Price v. King

• Decision Date: 15 November 1966
• Docket Number: No. 52200,52200
• Citation: 146 N.W.2d 328,259 Iowa 921
• Parties: Walter PRICE, Appellee, v. Charles KING, Appellant, Hartford Accident & Indemnity Company, Intervenor.
• Court: Iowa Supreme Court

Page 328

146 N.W.2d 328

259 Iowa 921

Walter PRICE, Appellee, v. Charles KING, Appellant Hartford Accident & Indemnity Company, Intervenor.

No. 52200.

Supreme Court of Iowa.

Nov. 15, 1966.

Whitfield, Musgrave, Selvy & Kelly, by Roy W. Meadows, Des Monies, for appellant.

Harold G. DeKay, Atlantic, for appellee.

Davis, Huebner, Johnson & Burt, by Ray H. Johnson, Jr., Des Moines, for intervenor.

RAWLINGS, Justice.

By an action at law plaintiff sought damages from defendant alleging a truck owned and negligently operated by defendant collided with one owned and operated by plaintiff, causing him personal injury and property damage.

By his answer defendant denied negligence, asserted both parties to the action were employees of Lee & Johnson, Inc. at time of the accident and as a result plaintiff could have redress only under the Iowa Workmen's Compensation Act.

Upon motion for adjudication of law points (rule 105, R.C.P.) joined in by both parties, it was stipulated plaintiff and defendant were co-employees of a common employer at time of the accident.

By amendment to his answer defendant asserted the accident arose out of and in the course of employment of both parties. In the absence of any denial of that allegation by plaintiff we shall assume it is correct.

The trial court held chapter 85, Code, 1962, did not bar plaintiff's action. The case was tried to a jury, verdict returned for plaintiff and defendant appealed.

The first and probably determinative question to be resolved is whether, under our workmen's compensation act, an employee is 'some person other than the employer' against whom a negligence action may be maintained by a co-employee. Stated otherwise is a co-employee entitled to the same immunity from such an action as that accorded by law to an employer?

The pertinent portions of the subject act provide as follows:

'85.3 Acceptance presumed--notice to nonresident employers.

'1. Except as provided by this chapter, it shall be conclusively presumed that every employer has elected to provide, secure, and pay compensation according to the provisions of this chapter for any and all personal injuries sustained by an employee arising out of and in the course of the employment, and in such cases, The employer shall be relieved from other liability for recovery of damages or other compensation for such personal injury.' (Emphasis supplied.)

'85.20 Rights of employee exclusive. The rights and remedies provided in this chapter for an employee on account of injury shall be exclusive of all other rights and remedies of such employee, his personal or legal representatives, dependents, or next of kin, at common law or otherwise, on account of such injury; * * *.' (Emphasis supplied.)

'85.22 Liability of others--subrogation. When an employee receives an injury for which compensation is payable under this chapter, and which injury is caused under circumstances creating a legal liability against Some person other than the employer to pay damages, the employee, or his dependent, or the trustee of such dependent, may take proceedings against his employer for compensation, and the employee or, in case of death, his legal representative may also maintain an action against such third party for damages. * * *.' (Emphasis supplied.)

Clearly the act does not deny an employee the common law right to recover damages caused by the negligence of a third person even though he has received workmen's compensation benefits for the same injury. This court has so held. See section 85.22; Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 387, 101 N.W.2d 167; and Black v. Chicago Great Western R. Co., 187 Iowa 904, 921, 174 N.W. 774.

I. We are satisfied our workmen's compensation act was not intended to and does not relieve anyone other than the employer from liability imposed by that law.

This court held, in Fabricius v. Montgomery Elevator Co., 254 Iowa 1319, 1326--1327, 121 N.W.2d 361, 93 A.L.R.2d 591, where a compensation insurance carrier tortiously causes injury to an employee of the insured employer, the insurance carrier does not stand in the shoes of the employer. In the same case it was also made abundantly clear statutes will not be so interpreted as to deprive one of a common law right unless the statute unequivocably so states. In this connection there is no provision in chapter 85 which specifically abolishes any common law right of action by one employee against a co-employee.

Then in Bradshaw v. Iowa Methodist Hospital, supra, we said: '* * * Workmen's compensation according to the statutory scale is one thing. The right thereto does not depend upon negligence of the employer but arises from the contract of hire into which the compensation act is read. (Citation) Damages at common law for the results of an injury negligently caused are quite different. (Citation)

'Certainly plaintiff had a right of action at common law in tort against this defendant for the damages resulting from its alleged negligent treatment of him. (Citations) He still has that right unless our compensation act has taken it from him. We find nothing in the act which does so. Our compensation law does not abolish common law actions in tort except those between employee and employer. The provision of section 85.20, Codes, 1954, 1958, I.C.A., (1962), that the rights provided in chapter 85 for an employee on account of injury shall be exclusive of all other rights of such employee applies only to actions against the employer (* * *) and does not prevent an injured employee from suing third persons at common law. 101 C.J.S., Workmen's Compensation § 983, p. 459.' (Emphasis supplied.)

And as was appropriately stated in Tawney v. Kirkhart, 130 W.Va. 550, 44 S.E.2d 634, 641: '* * * There is no contract as between coemployees and they are subject to the provisions of the compensation act in their relationship with each other in no way. They pay nothing into the fund that entitles them to protection under its terms. We can perceive nothing in sound reasoning that would entitle a coemployee to gratuitous protection for his own misconduct. To hold that a coemployee is not liable for his own negligence would increase the hazard of employments and be contrary to public policy. * * *.'

Also in Larson's Workmen's Compensation Law, Vol. 2, section 72.10, pages 171--172, is found this pertinent statement: 'Under most statutes, immunity to commonlaw suit is extended only to the employer. An injured employee can therefore sue his own co-employee for the latter's negligence, and it follows logically that the employer can exercise subrogation rights against his own tortfeasor employee. This result has been supported by reference to the plain language of the statute, by the argument that existing rights of action should not be deemed destroyed in the absence of clear language, by calling upon the moral principle that a tortfeasor should not be relieved of the consequences of his own wrongdoing, and by stressing the danger to workmen themselves of a doctrine that persons engaged in dangerous occupations should be immune from the consequences of their negligence. A rule supported by such a variety of arguments should not be defeated by resort to such artificial byproducts of tort law as the vice-principle doctrine, * * *.'

To hold a co-employee is not a person other than an employer would be the equivalent of saying an employee is an employer, and this we cannot do. In fact section 85.61 of the act provides in part as follows:

'1. 'Employer' includes and applies to any person, firm, association, or corporation, state, county, municipal corporation school district, county board of education, and the legal representatives of a deceased employer.

'2. 'Workman' or 'employee' means a person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship, for an employer, except as hereinafter specified.'

These definitions are here controlling. Cowman v. Hansen, 250 Iowa 358, 363, 92 N.W.2d 682; Young v. O'Keefe, 246 Iowa 1182, 1186, 69 N.W.2d 534; and Muscatine City Water Works v. Duge, 232 Iowa 1076, 1082--1084, 7 N.W.2d 203.

We are satisfied the rights and remedies of an injured employee against the employer, under chapter 85, are exclusive of all other rights and remedies of such employee against his employer. Section 85.20.

At the same time the law carefully preserves any common law right of action by an injured employee against a third party tort-feasor, he being 'some person other than the employer'. Section 85.22.

It is to us apparent the Iowa Workmen's Compensation Act does not extend immunity from suit as a third party tort-feasor to a co-employee or fellow worker of an injured workman.

Other authorities supporting this conclusion include Thomas v. Hycon, Inc. (D.C.), 244 F.Supp. 151; Ransom v. Haner, Alaska, 362 P.2d 282, 287; Marquez v. Rapid Harvest Co., 1 Ariz.App. 562, 405 P.2d 814, later vacated in 99 Ariz. 363, 409 P.2d 285, only by reason of absence of jurisdictional notice; King v. Cardin, 229 Ark. 929, 319 S.W.2d 214; Thompson v. Laccy, 42 Cal.2d 443, 267 P.2d 1; Stulginski v. Cizauskas, 125 Conn. 293, 5 A.2d 10, 11--12; Cuyler v. Elliott, Fla.App., 182 So.2d 55; Gay v. Greene, 91 Ga.App. 78, 84 S.E.2d 847; Nelson v. Union Wire Rope Corporation, 31 Ill.2d 69, 199 N.E.2d 769, applying Florida law; Roda v. Williams, 195 Kan. 507, 407 P.2d 471; Pflieger v. Haws, La.App., 180 So.2d 892; Behr v. Soth, 170 Minn. 278, 212 N.W. 461; Sylcox v. National Lead Co., 225 Mo.App. 543, 38 S.W.2d 497, 502; Rehn v. Bingaman, 151 Neb. 196, 36 N.W.2d 856, 859--860; Merchants Mut. Cas. Co. v. Tuttle, 98 N.H. 349, 101 A.2d 262; Herbert v. Layman, Vt., 218 A.2d 706; and Severin v. Luchinske, 271 Wis. 378, 73 N.W.2d 477. See also 101 C.J.S. Workmen's Compensation § 985e., page 481; 58 Am.Jur., Workmen's Compensation, sections 60--61, pages 616--617; and 43 Iowa L.Rev. 352.

We hold that...