Shonka v. Campbell

• Citation: 260 Iowa 1178,152 N.W.2d 242
• Decision Date: 11 July 1967
• Docket Number: No. 52563,52563
• Parties: , 26 A.L.R.3d 1274 Mary SHONKA, Appellee, v. Roger E. CAMPBELL, Appellee. Roger E. CAMPBELL, Appellee, v. Leola Belle RICE, Appellant.
• Court: United States State Supreme Court of Iowa

Page 242

152 N.W.2d 242

260 Iowa 1178, 26 A.L.R.3d 1274

Mary SHONKA, Appellee, v. Roger E. CAMPBELL, Appellee.

Roger E. CAMPBELL, Appellee, v. Leola Belle RICE, Appellant.

No. 52563.

Supreme Court of Iowa.

July 11, 1967.

Bastian, Beisser & Carlson, Fort Dodge, for appellant.

Johnson, Burnquist & McCormick, Fort Dodge, for appellee Mary Shonka.

Kersten & Opheim, Fort Dodge, for appellee Roger E. Campbell.

RAWLINGS, Justice.

By law action plaintiff, Mary Shonka, guest in an automobile owned and operated by host-driver, Leola Belle Rice, Sought damages from defendant, Roger E. Campbell, owner and operator of another automobile, as a result of collision of the two vehicles. Defendant Campbell cross-petitioned against host-driver Rice, as concurrent tort feasor, for contribution. A counterclaim against Compbell was filed by Rice for damage to her car.

Trial to jury resulted in verdict for plaintiff Shonka against defendant Campbell and he in turn was allowed recovery over against cross-defendant Rice for all in excess of half the amount paid by him to Shonka.

From judgment on verdict adverse to Rice on Campbell's cross-petition she alone appeals. We reverse.

About 3:00 P.M., February 27, 1964, hostdriver Rice left her place of employment to go home. Plaintiff was riding with her in the right front seat. They were traveling in an easterly direction across the Karl King Bridge in Fort Dodge. This span is a four lane highway with a divider and two marked lanes for east bound traffic.

Host-driver Rice Began a gradual turn from the right to left lane of travel, with dispute as to whether a left turn signal was given. She was about half way into the left lane when the rear of her car was struck by the following same direction vehicle owned and operated by defendant Roger E. Campbell. He had just finished drag racing and immediately prior to the collision was traveling 55 miles per hour in a 35 mile an hour zone.

Plaintiff was severely injured and brought action at law against defendant Campbell. He in turn cross-petitioned against host-driver Rice.

At close of all the evidence Rice, defendant to cross-petition, moved for a directed verdict on Campbell's action because of the host-guest relationship existing between her and Shonka. The trial court overruled this motion and submitted the actions to a jury.

Following the verdicts host-driver Rice moved for judgment notwithstanding the verdict on Campbell's cross-petition. This motion was overruled.

For purpose of our review it is conceded: (1) Plaintiff Shonka was a guest in the Rice car, and (2) the host-driver was neither under the influence of intoxicating liquors nor operating her automobile recklessly.

I. We have held where there is no claim or showing of an intentional wrong, or moral turpitude, or any concerted action by alleged tort feasors, there is at least a right of equitable contribution between them. Best v. Yerkes, 247 Iowa 800, 805--810, 77 N.W.2d 23, 60 A.L.R.2d 1354. See also Blunt v. Brown, D.C., 225 F.Supp. 326, 328.

But since Rice and Shonka occupied a host-guest relationship our task is to determine whether the Iowa guest statute affords a negligent host-driver immunity from liability for contribution to a third party tort feasor.

Section 321.494, Code of Iowa, provides: 'The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire unless damage is caused as a result of the driver of said motor vehicle being under the influence of intoxicating liquor or because of the reckless operation by him of such motor vehicle.'

Under this statutory enactment the liability of an automobile operator to a person riding in the car as a guest is limited to damage caused by reason of the hostdriver's intoxication or recklessness. Marean v. Petersen, 259 Iowa 557, 144 N.W.2d 906, 912.

Were it not for the foregoing statute a negligent host-driver might, in this jurisdiction, be liable for contribution as a concurrent tort feasor for injuries caused a guest occupant. See Garrity v. Mangan, 232 Iowa 1188, 1191, 6 N.W.2d 292.

The question presented has been previously considered by several courts. See Troutman v. Modlin, (8 Cir.), 353 F.2d 382, 385--387; Cox v. Maddux, 255 F.Supp. 517, 526; Blunt v. Brown, 225 F.Supp. 326, 329; Fields v. Synthetic Ropes, Inc., Del.Super., 211 A.2d 617, 620--622; Lutz v. Boltz, 48 Del. 197, 100 A.2d 647, 648; Downing v. Dillard, 55 N.M. 267, 232 P.2d 140, 141; Burmeister v. Youngstrom, S.D., 139 N.W.2d 226, 230--231; Mitchell v. Gooch, Tex. Civ.App., 210 S.W.2d 834, 838; and Patterson v. Tomlinson, Tex.Civ.App., 118 S.W.2d 645, 646--647.

Without exception the courts in these cases held a host may effectively invoke the state guest statute when sued for contribution, being subject to liability only in event the host is, under the law, liable to the guest.

II. The foregoing view is premised upon a commonly accepted theory that the right to contribution among concurrent tort feasors is dependent upon Common liability to an injured party.

Dealing with that subject in Iowa Power and Light Co. v. Abild Construction Co., 259 Iowa 314, 144 N.W.2d 303, 308, a majority of this court said: 'Contribution is based on concurrent negligence of the parties toward the injured party and requires common liability.' See also Allied Mutual Casualty Co. v. Long, 252 Iowa 829, 833--835, 107 N.W.2d 682; Farmers Mut. Auto. Ins. Co. v. Milwaukee Auto. Ins. Co., 8 Wis.2d 512, 99 N.W.2d 746, 748-- 750; 18 C.J.S. Contribution § 3, page 4; and 18 Am.Jur.2d, Contribution, section 47, page 66. But see dissent, Iowa Power and Light Co. v. Abild Construction Co., supra, loc. cit. 144 N.W.2d 317.

This common liability may be joint or several, but under our prior holdings in order that a right of contribution exist, the injured party must have a legally recognized remedy against both the party seeking contribution and the party from whom contribution is sought.

III. The trial court and cross-petitioner Campbell lean heavily on Blackford v. Sioux City Dressed Pork, Inc., 254 Iowa 845, 118 N.W.2d 559, in support of the view that Campbell's action against Rice for contribution may stand.

Blackford is neither in point nor is it here persuasive. In that case this court dealt with the terms of a contract between an employer and a third party, the obligation on which suit was brought being for an indemnity arising out of contract. In this connection see also Blunt v. Brown, D.C., 225 F.Supp. 326, 330 and American District Telegraph Co. v. Kittleson, 179 F.2d 946, 951--952.

IV. Finally on this point, subjection of Rice, the host, to liability by way of contribution for nothing more than negligence would by indirection compel her to pay Shonka, the guest, in contravention of our guest statute which precludes recovery from the host-driver under such circumstances. See Code section 321.494, and Marean v. Petersen, 259 Iowa 557, 144 N.W.2d 906, 911--912.

In keeping with the majority view expressed in prior decisions of this court, we hold a host-driver, not directly liable to a guest, may effectively invoke section 321.494 as a defense to an action for contribution by a third party tort feasor.

With this issue determined favorably to Rice, sole appellant, there is no need to pursue the other errors urged by her.

V. The trial court erred in not granting the motion by cross-defendant Leola Belle Rice for judgment notwithstanding the verdict against her on cross-petition of defendant Roger E. Campbell.

This case must be accordingly reversed and remanded for entry of judgment notwithstanding the verdict on motion of Leola Belle Rice, defendant to cross-petition.

Reversed and remanded for further proceedings consistent with this opinion.

All Justices concur except MASON and BECKER, JJ., who dissent.

MASON, Justice (dissenting).

I dissent.

The trial court's ruling involves a determination whether a tort-feasor may recover contribution from another who is himself not liable to the injured person, but whose negligence concurred in producing an injury.

A tort-feasor may escape liability to the injured plaintiff if he enjoys a special defense. For example, he may be: (1) plaintiff's spouse and thus have the defense of interspousal immunity, (2) so related to plaintiff to have available the family immunity doctrine resulting from filial or other family relationship, (3) plaintiff's employer with responsibility for only limited liability under the workmen's compensation statutes or (4) plaintiff's host-driver of an automobile involved in collision with another vehicle and be protected by the guest statutes from the guest's claim for damages resulting from ordinary negligence.

A determination of the question involved in this ruling makes necessary a decision whether the immunity from suit by the injured plaintiff, for damages resulting from the potential contributor's negligent conduct, extends to an action for contribution brought by another tort-feasor who has been compelled to pay damages to the injured plaintiff.

As limited to the facts before the trial court the sole question presented is, where a guest is injured in an automobile collision between the car of her host and that of the third party, each of whose ordinary negligence is a proximate cause of the injury to the guest, may the third party recover contribution of one half of the damages caused by their joint or concurring ordinary negligence.

The trial court held immunity should not be so extended. I agree.

As stated by the majority in the absence of statute a guest would have a right to recover under the common law liability of the driver for negligent acts causing damages to the guest. Garrity v. Mangan, 232 Iowa 1188, 1191, 6 N.W.2d 292, 294. Our guest statute, section 321.494, Code, 1966, limits the liability of an automobile operator to a person riding in the car...