State v. F. W. Fitch Co.
| Decision Date | 06 February 1945 |
| Docket Number | 46539. |
| Citation | 17 N.W.2d 380,236 Iowa 208 |
| Parties | STATE et al. v. F. W. FITCH CO. |
| Court | Iowa Supreme Court |
Rehearing Denied April 6, 1945.
Howard L. Bump, Hallagan & Cless, and Haemer Wheatcraft, all of Des Moines, for appellant.
John M. Rankin, Atty. Gen., George H. Clark, Jr., Asst. Atty Gen., and C. B. Hextell, of Des Moines, for appellees.
State of Iowa and Iowa State Highway Commission brought this action at law against F. W. Fitch Company for damage to a highway bridge over a river on Primary Highway 69, alleging defendant's truck and trailer were negligently driven into a corner of the bridge. The petition contained no allegations of specific negligence.
The answer denied the allegations of negligence and damage, alleged the accident was caused by the negligence of the Highway Commission in placing a sharp turn in the approach to the bridge due to which the truck struck the corner of the bridge while being carefully driven in a fog, and also alleged that neither the State nor the Highway Commission was empowered to maintain the action. Defendant also counterclaimed for damage to the cargo of the trailer.
Plaintiffs moved to dismiss said counterclaim, asserting the same could not be maintained against either of them. Thereafter, upon application of defendant, the court made a separate adjudication of certain law points under Rule 105 of the Rules of Civil Procedure and at the same time sustained the motion to dismiss the counterclaim. From said adjudication and order this court granted appeals to defendant and plaintiffs. Defendant, having first filed notice of appeal will be referred to as appellant and plaintiffs as appellees.
I. Bridges are a part of public highways. Subsection 5 of section 63, Code of Iowa 1939. Authorities are substantially in accord that action will lie in a proper case against one who wrongfully or negligently injures a bridge or a highway. Elliott on Roads and Streets, 4th Ed., Vol. 1, Section 77, page 98; 25 Am.Jur. 635; 8 Am.Jur. 972; 11 C.J.S., Bridges, § 99, p. 1135; Township v. Parkhurst, 122 N.J.L. 598, 7 A.2d 627. In the language of Town of Troy v. Cheshire Railroad Co., 23 N.H. 83, 55 Am.Dec. 177, 184, 'If the bridge, erected by the town, and which they are bound to maintain, * * * is destroyed, either wantonly or negligently, by others, the town may, upon what we think are unquestionable principles of common law and common justice, commence their suit against the wrong-doer, and recover all such damages as they have sustained by his wrongful act, * * *.'
This common-law remedy is not necessarily superseded by statutes providing penalties or new remedies. Struble v. Republic Motor Truck Co., 216 Mich. 299, 185 N.W. 792; Town of Sharon v. Anahma Realty Corporation, 97 Vt. 336, 123 A. 192; Jones v. Knutson, 212 Iowa 268, 272, 234 N.W. 548. Nor do statutes providing for criminal liability warrant the inference that, in the absence of statute, there is no civil liability. Pittsburgh, C., C. & St. L. Ry. Co. v. Iddings, 28 Ind.App. 504, 62 N.E. 112.
This bridge on Primary Highway 69 was constructed by Decatur County in 1921. In 1927 the powers and duties of county boards of supervisors with respect to the construction and maintenance of primary roads were transferred to Iowa State Highway Commission (Code, § 4755.33) and refunds from the primary road fund were made to Decatur County and other counties for their expenditures in building bridges. Chapter 241.1 Code of 1939.
When highways outside of cities or towns are established across property owned by others, the fee title to the land usually remains in the adjoining landowners. The effect of such establishment is to give the public the privilege of travel thereon. The ownership of such easement is in the state, for the benefit of the general public. Although Decatur County constructed, maintained and had the immediate control of the bridge it did not own the same. The ownership was in the state as trustee for the general public. The supreme control was in the state. The rights and powers of Decatur County therein were only those expressly delegated to it and its board of supervisors by statute, or implied as essential to the performance of such delegated duties. Prior to 1927, Decatur county had a qualified interest in the bridge, if we may use that expression, growing out of its powers and duties of construction and maintenance. Because of such duties, damage to the bridge then would have been damage to Decatur County. However, all rights, powers and duties of Decatur County therein had been terminated before the accident here in question. Hence, appellant's contention that this action should have been brought by Decatur County is without merit. Dickinson County v. Fouse, 112 Iowa 21, 83 N.W. 804; Quinn v. Baage, 138 Iowa 426, 433, 114 N.W. 205; 11 C.J.S., Bridges, § 45, p. 1076; 39 C.J.S., Highways, § 136, p. 1073; Iowa Ry. & Light Corp. v. Lindsey, 211 Iowa 544, 231 N.W. 461; Roseau county v. Hereim Tp., 149 Minn. 292, 183 N.W. 518.
II. Iowa State Highway Commission is merely an agent of the state, acting for and on behalf of the state within the powers conferred upon the commission by statute. Long v. State Highway Comm., 204 Iowa 376, 378, 213 N.W. 532. Except as authorized by statute such commission has no capacity to sue. 39 C.J.S., Highways, § 159, p. 1130.
Among the powers and duties of the Highway Commission are the construction and maintenance of primary highways. The commission has not been given the power to maintain suits generally and prior to 1937 it was not empowered to bring any action to recover for damage to primary highways.
In 1937 the legislature enacted chapter 134, 47 G.A., entitled Motor Vehicle Law. Said act is now chapter 251.1, Code of 1939, entitled Motor Vehicles and Law of Road. Code section 5035.24, which is contained in said chapter, is, in part, as follows:
'* * *
'Such damage may be recovered in a civil action brought by the authorities in control of such highway or highway structure.'
The Highway Commission is in control of this bridge and its counsel contend said section empowers it to maintain this action. The petition charges the vehicle was negligently driven into a corner of the bridge. Section 5035.24 does not mention negligence. However, it is argued that chapter 251.1 is a comprehensive code regulating the operation of motor vehicles and providing penalties for violation of its rules and that the expression 'any illegal operation' as used in section 5035.24 means any operation contrary to any provisions of said chapter, or in other words, any operation which is negligent because it is illegal under the motor vehicle act.
Counsel for the commission cite State Highway Commission v. Stadler, 158 Kan. 289, 148 P.2d 296, in which a similar statute was held to give the commission a right of action for such negligent acts as amounted to illegal acts under the Kansas act regulating traffic on highways. The result reached in that decision was influenced by the history of such legislation in that state. The decision states the Kansas statute was substituted for prior statutes, by which prior statutes whatever common-law cause of action for negligent destruction of highways had theretofore existed in favor of a governmental agency was superseded by the statutory cause of action provided for therein. The Iowa statute is our first legislation upon the subject. Prior thereto the commission was not empowered to maintain any action for damage to highways. The Iowa statute involves the delegation of power not previously vested in the Highway Commission.
In the original motor vehicle act and in chapter 251.1 Code of Iowa 1939, section 5035.24 is placed in a division entitled, 'Size, Weight, and Load.' This division starts with section 5035.01 which makes it a misdemeanor to drive on a highway any vehicle of a size or weight exceeding the limitations of the chapter. Section 5035.02 sets out certain exceptions. Subsequent sections deal with width, projecting loads, height, length, axles, towed vehicles, drawbars, maximum load, permits for excess size and weight, etc. Section 5035.24 refers to damage which a highway or highway structure may sustain (1) from any illegal operation or (2) from the operation of a vehicle weighing more than the statutory maximum but authorized by a special permit. Operation under such permit would not be illegal. That is one of the exceptions listed in section 5035.02. The permit legalizes such operation. Nevertheless, the statute provides for liability for damage resulting therefrom.
The first part of the section refers to 'any illegal operation.' The context indicates this includes any operation contrary to any of the requirements of the division captioned Size, Weight, and Load, not within the exceptions listed in section 5035.02, but that it does not include operation which may be negligent at common law or negligent because of non-compliance with other provisions of the motor vehicle act. Nor does the language of the statute justify a contrary conclusion. The words illegal and negligent are not synonymous and we are not prepared to say they should be here so interpreted. Had the legislature intended the statute to include damage resulting...
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