Riter v. Keokuk Electro-Metals Co.

• Decision Date: 03 April 1957
• Docket Number: ELECTRO-METALS,No. 48881,48881
• Citation: 248 Iowa 710,82 N.W.2d 151
• Parties: Wilfred W. RITER, Charles D. Ramsey, Gaylord L. Steele, Glenn Clark, Jesse W. Phillips and Charles W. Heath, Appellees, v. KEOKUKCOMPANY, Appellant.
• Court: Iowa Supreme Court

Page 151

82 N.W.2d 151

248 Iowa 710

Wilfred W. RITER, Charles D. Ramsey, Gaylord L. Steele, Glenn Clark, Jesse W. Phillips and Charles W. Heath, Appellees, v. KEOKUK ELECTRO-METALS COMPANY, Appellant.

No. 48881.

Supreme Court of Iowa.

April 3, 1957.

Boyd, Walker, Huiskamp & Concannon, Keokuk, McManus & McManus, Keokuk, and Pollard, Palmer & Lawse, Fort Madison, for appellant.

Hollingsworth & Hollingsworth, Keokuk, and Rendlen & Rendlen, Hannibal, Mo., for appellees.

OLIVER, Justice.

This is an action at law, instituted in 1949, under section 657.1, Code of Iowa 1946, 1950, 1954, I.C.A., to abate and enjoin an alleged nuisance. The petition alleges it is a class action by six named plaintiffs, each of whom occupies a home owned by him in that part of Keokuk known as West Keokuk, on behalf of themselves and all other similarly situated and affected property owners and residents of that part of Keokuk, consisting of approximately two thousand persons. The homes of the named plaintiffs are in the vicinity of an industrial district in the southwest part of Keokuk known as Commercial Alley district in which the plant of defendant Keokuk Electro-Metals Company is located. It may be observed that although the named plaintiffs were members of a voluntary association known as West Keokuk Improvement Association, the action was not brought by or on behalf of such association or its members. Nor did plaintiffs' pleadings make any reference to the association or its members or any of them as such.

The petition states that for the several years immediately prior thereto defendant Keokuk Electro-Metals Company has so operated its plant as to cause the emission of noxious fumes, smoke, particles, dust, grime and polluted air, which were carried by air upon and into the homes and premises of plaintiffs and others similarly situated, soiling and damaging said properties and their contents, and causing annoyance, inconvenience, discomfort and injury to the health of such persons. Plaintiffs pray that defendant be enjoined from continuing the operation of its plant in such manner as to cause the continuance of such conditions.

Defendant's Answer pleads denials, estoppel by delay, laches and acquiescence, the statute of limitations, and an easement or prescriptive right. Most of the defenses pleaded are based upon operation of its plant for more than thirty years at the same place, which has been and is an industrial and manufacturing district of Keokuk.

The case was tried to the court (Judge Burrows) in January, 1951. In February, 1952, the court rendered its, 'Opinion and Interlocutory Decree,' finding the operation of defendant's plant, as then conducted, was a nuisance and ordering the same abated by August 1, 1951, and if not so abated, that a writ of injunction issue, enjoining the continuance of the nuisance. Thereafter defendants filed, 'Motion for new trial and to vacate decree and to enlarge and amend findings of fact and conclusions of law and to modify decree.' The death of Judge Burrows delayed the disposition of that motion, which was submitted and overruled in 1953. However, no injunction was ordered and the plant continued to operate. Thereafter the case was appealed to this court. The preparation of the lengthy transcript and record consumed considerable time and the death of the trial attorney for defendant resulted in additional delay. Hence, the case, tried early in 1951, was not submitted to this court until late in 1956.

I. 58 I.C.A. Rules of Civil Procedure, rule 42 entitled, 'Class Actions', states:

'If the persons composing a class are so numerous that it is impracticable to bring all before the court, such number of them as will insure adequate representation of all may sue or be sued on behalf of all, where the character of the right involved is:

'(a) joint or common, or held primarily by one who has refused to enforce it, thereby entitling the class or its members to do so; or

'(b) several, and the action seeks to adjudicate claims which do, or may, affect specific property; or

'(c) several, and a common question of law or fact affects the several rights, and a common relief is sought.'

Defendant moved to strike the parts of the petition alleging this was a class action. The trial court overruled this motion stating the cause of action pleaded was contemplated under R.C.P. 42(c). Defendant assigns this as error.

R.C.P. 42 is substantially the same as Rule 23(a), Federal Rules of Civil Procedure, 28 U.S.C.A., which has been interpreted frequently by federal courts. Subdivision 3 of Federal Rule 23(a) is the counterpart of R.C.P. 42(c) which is applicable, 'where the character of the right involved is: * * * (c) several, and a common question of law or fact affects the several rights, and a common relief is sought.'

The petition in the case at bar fits each requirement of the foregoing classification. The character of the right involved is several and a common question of law or fact affects the several rights and a common relief is sought. Such a case is often referred to as a 'spurious' class suit, as distinguished from so-called 'true' and 'hybrid' class suits, authorized, respectively, by the first two subdivisions of the Rule. Various courts have said the spurious class suit is only a joinder device in which the rights of those not present are not bindingly adjudicated.

California Apparel Creators v. Wieder of Cal., Inc., 2 Cir., 162 F.2d 893, 897, 174 A.L.R. 481, states: 'It does not grant authaority to adjudicate finally rights as to the nonappearing parties or to confer any additional substantive rights upon the plaintiffs suing. [Citations.] Hence the rights of the rest of the 4,500 potential plaintiffs are actually not to be settled here, and we cannot give judgment as though they were.'

Among other decisions considering and recognizing the doctrine are: Oppenheimer v. F. J. Young & Co., 2 Cir., 144 F.2d 387; Dickinson v. Burnham, 2 Cir., 197 F.2d 973, 979, certiorari denied 344 U.S. 875, 73 S.Ct. 169, 97 L.Ed. 678; Kainz v. Anheuser-Busch, Inc., 7 Cir., 194 F.2d 737, certiorari denied 344 U.S. 820, 73 S.Ct. 17, 97 L.Ed. 638; Weeks v. Bareco Oil Co., 7 Cir., 125 F.2d 84; Martinez v. Maverick County, etc., 5 Cir., 219 F.2d 666, 672; Pentland v. Dravo Corp., 3 Cir., 152 F.2d 851, 852; Knowles v. War Damage Corp., 83 U.S.App.D.C. 388, 171 F.2d 15, 18, certiorari denied 336 U.S. 914, 69 S.Ct. 604, 93 L.Ed. 1077.

Moore's Federal Practice--2nd series, Vol. 3, page 3443, states, with reference to the spurious class suit:

'When a suit is brought by or against such a class, it is merely an invitation to joinder--an invitation to become a fellow traveller in the litigation, which may or may not be accepted. It is an invitation and not a command performance. Assume that a railroad negligently sets fire to property, and widespread damage to many property owners ensue. Here there is a question of law or fact common to many persons.

'* * * The judgment would bind A, B and C and privies, but would not bind others beyond the principle of stare decisis, which operates as to all judgments.'

See also 'The 'Common Questions' principle in the code provisions for representative suits, 30 Mich.Law Rev. 878; Class Suits and the Federal Rules, 22 Minn.Law Rev. 34, 54.

So in the case at bar, the statement in the petition that the suit was brought as a class action, etc., was merely an invitation to others in the class to intervene in the case. The holding of the trial court that this pleading was proper under R.C.P. 42(c) was correct.

However, it does not appear that any unnamed member of the so-called class accepted the invitation of plaintiffs to join them in the action. The plaintiffs named in the petition and defendant were the only parties to the action. Plaintiffs have represented no one other than themselves. It does not follow from this, that the court should have dismissed the action. The failure of others to join did not invalidate the action on behalf of the named plaintiffs. The judgment in such action would be binding upon the named plaintiffs, the defendant and their privies. It would not bind others beyond the principle of stare decisis. Hence, the trial court did not err in overruling this ground of defendant's motion to dismiss.

II. Code § 657.1 I.C.A., provides, 'a civil action by ordinary proceedings may be brought to enjoin and abate the same [a nuisance] and to recover damages sustained on account thereof.' This case was brought and tried to the court as an action at law. Defendant contends that, because damages were not sought, section 657.1 was not applicable and the case should have been brought in equity.

Defendant's failure to pursue the remedy afforded by statute for the correction of the assigned error for bringing the action at law, precludes consideration of this complaint. Code §§ 611.7 and 611.9, I.C.A., provide an error as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings, and a transfer to the proper docket, and that defendant may have the correction made by motion at or before the filing of answer. Here defendant failed to make such motion. This operated as a waiver of its right, if any, to such transfer. Wright v. Copeland, 241 Iowa 447, 450, 41 N.W.2d 102; McManis v. Keokuk Savings Bank & Trust Co., 239 Iowa 1105, 1110, 33 N.W.2d 410, 412; Vosges v. Clark, 240 Iowa 1108, 1110, 38 N.W.2d 611, 613, and citations.

III. Keokuk is an industrial city. Its 1950 population was about sixteen thousand. In its southwest corner is a district known as Commercial Alley district, which occupies a narrow strip of bottom land one and one fourth miles in length, along the bank of the Mississippi River. A steep bluff separates this strip of land from other parts of the city. From its beginning, Commercial Alley district has been an industrial district, occupied by railroad yards...