Secured Finance Co. v. Chicago, Rock Island & Pacific Ry. Co.

• Decision Date: 12 March 1929
• Docket Number: 38710
• Citation: 224 N.W. 88,207 Iowa 1105
• Parties: SECURED FINANCE COMPANY, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellee
• Court: Iowa Supreme Court

224 N.W. 88

207 Iowa 1105

SECURED FINANCE COMPANY, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellee

No. 38710

Supreme Court of Iowa, Des Moines

March 12, 1929

Appeal from Hardin District Court.--B. R. BRYSON, Judge.

An action to recover damages for injuries to an automobile. From a directed verdict in favor of the defendant, the plaintiff appeals.

Affirmed.

Peisen & Soper, for appellant.

J. G Gamble, A. B. Howland, and R. L. Read, for appellee.

ALBERT C. J. STEVENS, DE GRAFF, MORLING, and WAGNER, JJ., concur.

OPINION

ALBERT, C. J.

I.

One Jacob Hutt, plaintiff's assignor, was the owner of a certain Star touring car, and on the 30th day of September, 1925, he loaned said automobile to one Thomas, who took possession of the same, and while driving said car, on business of his own, he had a collision with one of the freight trains of the defendant. Hutt's claim for damages resulting therefrom being assigned to the plaintiff, it brought action thereon, asking damages in the sum of $ 750.

The defendant answered, and among other things pleaded that the car was being driven by Thomas with the express consent and permission of Hutt, the owner; that the collision was caused and occasioned by the direct negligence of the driver, Thomas; that such direct negligence on the part of Thomas contributed to the accident and damage; and that such contributory negligence on the part of Thomas is imputable to the owner of the car, Jacob Hutt.

Motion was made to strike these allegations of defendant's answer, which motion was overruled. The cause proceeded to trial, and a motion for a directed verdict in behalf of the defendant was sustained, on the ground that the negligence of Thomas was imputable to Hutt, and was binding upon the plaintiff. Judgment was entered accordingly; hence this appeal.

The assignee herein, the plaintiff, claims no further or higher rights than has its assignor, Hutt; hence the only question raised and argued in the case is whether or not the negligence of Thomas, which contributed to this injury, is imputable to Hutt, and through him to the plaintiff.

If it be assumed, for the sake of this division of the argument, that the relation between Hutt and Thomas was that of bailor and bailee, the question is: Is the contributory negligence of the bailee imputable to the bailor in an action based on the negligence of a third party? There are many cases in the early history of this country that hold that such negligence is imputable to the bailor, but the weight of authority at the present time seems to be that such contributory negligence is not imputable to the bailor. To one who wishes to pursue this question in detail, the attitude of the various courts will be found in 6 A. L. R. 316; 3 Ruling Case Law 147, Section 70; Gibson v. Bessemer & Lake Erie R. Co., 226 Pa. 198 (27 L. R. A. [N. S.] 689, 690, 75 A. 194); 6 Corpus Juris 1168; Davis v. Morgan County, 209 Ala. 343 (96 So. 473); Cain v. Wickens, 81 N.H. 99 (122 A. 800, 30 A. L. R. 1246); Oster v. Chicago & A. R. Co. (Mo. App.), 256 S.W. 826.

An analysis of the theory underlying this question develops the following situation:

The holdings which developed this theory of nonliability on the part of the bailor for the contributory negligence of the bailee arose in this way: The consensus of all holdings, including our case of Neubrand v. Kraft, 169 Iowa 444, 151 N.W. 455, was that the bailor of an automobile is not responsible to third persons for the negligence of the bailee. This was the rule at common law. In other words, the holding was that the negligence of the bailee was not imputable to the bailor in case of injury done by the bailee.

It logically follows that the converse of this proposition should obtain where the bailor so complains of injury to the property in the hands of the bailee,--that the negligence of the bailee should not be imputed to the bailor. This is the theory upon which the majority rule seems to be based. It is well illustrated by a statement in the case of Fischer v. International R. Co., 112 Misc. 212 (182 N.Y.S. 313), where it is said:

"It certainly would seem logical that, where the owner of property loaned is not liable to third parties for the negligence of the bailee, that the converse of the proposition should obtain, and that such negligence, when contributory to the negligence of third parties, should not absolve the third parties from liability to the owner of property damaged."

It is axiomatic that, when the reason for a rule fails, the rule itself must fail.

Under Section 5026 (Codes of 1924 and 1927), the owner of an automobile is liable for damages done with a car, when driven by another person with the consent of the owner through the negligence of the driver. This statutory provision, therefore, makes the owner liable for all damages done by his car while...