Schultz v. Gosselink

• Decision Date: 07 February 1967
• Docket Number: No. 52343,52343
• Citation: 260 Iowa 115,148 N.W.2d 434
• Parties: Edward SCHULTZ, Appellant, v. Dick W. GOSSELINK, Appellee.
• Court: Iowa Supreme Court

Page 434

148 N.W.2d 434

260 Iowa 115

Edward SCHULTZ, Appellant, v. Dick W. GOSSELINK, Appellee.

No. 52343.

Supreme Court of Iowa.

Feb. 7, 1967.

Cross, Hamill, Selby & Updegraff, Newton, for appellant.

Ralph Bellizzi, Des Moines, and Johnson & Johnson, Knoxville, for appellee.

MOORE, Justice.

The question here is whether the provisions of chapter 430, section 1, Acts of the 61st General Assembly, now section 619.17, Code 1966, apply to tort actions arising before its effective date, July 4, 1965.

The Act amends chapter 619, Code 1962, by adding a new section thereto. It provides: 'Contributory negligence--burden. In all actions brought in the courts of this state to recover damages of a defendant in which contributory negligence of the plaintiff, actual or imputed, was heretofore a complete defense or bar to recovery, the plaintiff shall not hereafter, have the burden of pleading and proving his freedom from contributory negligence, and if the defendant relies upon negligence of the plaintiff as a complete defense or bar to plaintiff's recovery, the defendant shall have the burden of pleading and proving negligence of the plaintiff, if any, and that it was a proximate cause of the injury or damage. As used in this section, the term 'plaintiff' shall include a defendant filing a counterclaim or cross-petition, and the term 'defendant' shall include a plaintiff against whom a counterclaim or cross-petition has been filed.'

Plaintiff's petition, filed April 21, 1964 alleges that at approximately 5:30 a.m. September 6, 1962 his automobile struck a small wooden building which defendant had unloaded from his truck parked in a dense for near the north end of the Des Moines River bridge on highway 14 in Marion County. He alleges three specifications of negligence by defendant, he was free from any negligence which contributed in any manner to the collision, damages for personal injuries and property loss and asks judgment for $10,000.

Defendant's answer, filed May 12, 1964, denies the allegations of plaintiff's petition and alleges plaintiff was driving at a dangerous and excessive speed under the existing circumstances, plaintiff's negligence was the sole proximate cause of the collision and specifically pleads plaintiff was guilty of negligence which contributed to the accident and his resultant damages.

Trial of the case commenced at 10 a.m. October 13, 1965 and after the jury was selected and sworn defendant asked the trial court to determine the applicability of the Act which we have set out.

After some discussion the trial court held as a matter of law the case would be tried under the laws existing prior to enactment of chapter 430, section 1, Acts of the 61st General Assembly. The trial court announced his ruling was the law of the case. In other words the court held the statute only applies prospectively.

Upon completion of plaintiff's case in chief, defendant made a motion for directed verdict which was overruled. Without introducing any evidence defendant rested and renewed his motion. It was then sustained and judgment for costs entered against plaintiff, from which he has appealed.

Plaintiff asserts the trial court erroneously construed the applicability of the new statute and as a consequence thereof erred in directing a verdict against him. Defendant argues the statute affects substantive rights and is prospective only.

The parties have carefully limited the issue to whether the quoted statute is retrospective or prospective only. We hold as to burden of proof it must be treated as operating retroactively.

I. The question whether a statute operates retrospectively or prospectively only is one of legislative intent. Davis v. Jones, 247 Iowa 1031, 1034, 78 N.W.2d 6 7; 50 Am.Jur., Statutes, section 478. In determining such intent it is a general rule all statutes are to be construed as having a prospective operation only unless the purpose and intent of the legislature to give it retroactive effect is clearly expressed in the act or necessarily implied therefrom. The rule is subject to an exception where the statute relates to remedies and modes of procedure. If a statute relates to a substantive right, it ordinarily applies prospectively only. If it relates to remedy or procedure, it ordinarily applies both prospectively and retrospectively. Davis v. Jones, 247 Iowa 1031, 1036, 78 N.W.2d 6, 9; Grant v. Norris, 249 Iowa 236, 247, 85 N.W.2d 261, 267; Hill v. Electronics Corp. of America, 253 Iowa 581, 590, 113 N.W.2d 313, 318. See also 82 C.J.S. Statutes §§ 414, 417, 421, 422; 50 Am.Jur., Statutes, sections 478, 482.

In Bascom v. District Court, 231 Iowa 360, 362, 363, 1 N.W.2d 220, 221, we recognize the general rule as well as the exception thereto and quote this from Lewis v. Pennsylvania Railroad Company, 220 Pa. 317, 322, 69 A. 821, 822, 18 L.R.A.,N.S., 279; '* * * No one can claim to have a vested right in any particular mode of procedure for an enforcement or defense of his rights. When a new statute deals with procedure only, prima facie, it applies to all actions,--those which have accrued or are pending, and future actions. If before final decision a new law as to procedure is enacted and goes into effect, it must from that time govern and regulate the proceeding. Sutherland on Statutory Construction, § 482, and the authorities there cited. * * *.'

II. Neither party contends the statute expresses a legislative intent it should be applied retroactively, nor do we find such language in the statute. Plaintiff's position therefore necessarily depends on establishing the statute relates to remedy or procedure which is often referred to as admective law.

Black's Law Dictionary, 4 ed., page 1598, states Substantive Law is 'That part of law which creates, defines, and regulates rights, as opposed to 'adjective or remedial law', which prescribes method of enforcing the rights or obtaining redress for their invasion.'

At page 1367, Black defines Procedural Law as: 'That which prescribes method of enforcing rights or obtaining redress for their invasion; machinery for carrying on a suit.' At page 1457 Remedial is defined as: 'Affording a remedy; giving the means of obtaining redress. Of the nature of a remedy; intended to remedy wrongs and abuses, abate faults, or supply defects. Pertaining to or affecting the remedy, as distinguished from that which affects or modifies the right.'

Supported by a long list of cited authorities from other jurisdictions the Arizona Court in holding a right to appeal is substantive but the manner in which the right may be exercised is procedural in State v. Birmingham, 96 Ariz, 109, 392 P.2d 775, 776, states: 'Uniformly, the substantive law is that part of the law which creates, defines and regulates rights; whereas the adjective, remedial or procedural law is that which prescribes the method of enforcing the right or obtaining redress for its invasion. It is often said the adjective law pertains to and prescribes the practice, method, procedure or legal machinery by which the substantive law is enforced or made effective.'

While the distinction between remedial procedures and impairment of vested rights is often difficult to draw we believe our prior holdings establish the pleading and proof of contributory negligence in a tort action relates to remedy and procedure.

After discussing and approving an...