# Boyle v. Burt

> Supreme Court of Iowa · September 2, 1970 · 179 N.W.2d 513

URL: https://www.frixlaw.com/law-library/cases/9687915

## Case

- **Full name:** Daniel W. BOYLE, Administrator of the Estate of James E. Vanek, Deceased, Plaintiff, v. Barry O. BURT and Gregory W. Burt, Defendants-Appellees, v. IOWA CITY, Iowa, a Municipal Corporation, Additional Defendant-Appellant
- **Court:** Supreme Court of Iowa
- **Decided:** September 2, 1970
- **Citations:** 179 N.W.2d 513; 1970 Iowa Sup. LEXIS 877
- **Precedential status:** Published
- **Opinion:** Dissent by LeGRAND
- **Judges:** Rawlings, Rees, Larson, Stuart, Legrand, Mason, Becker, Uhlenhopp
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9687915

## Opinion text

LeGRAND, Justice
(dissenting).
I must respectfully dissent because I cannot read into section 613A.5 what the majority sees there. In my opinion this section was designed to deal only with actions brought by the injured party himself — the primary party — and was not intended to establish rules by which either contribution or indemnity is to be determined.
Contribution and indemnity between tort feasors are equitable doctrines which permit one who has paid more than his just share of a loss to recover from another who should, in right and justice, contribute to or fully bear that loss. We have consistently recognized this principle since Best v. Yerkes, 247 Iowa 800, 810 , 77 N.W.2d 23, 29 , 60 A.L.R.2d 1354 . See also Iowa Power and Light Company v. Abild Construction Company, 259 Iowa 314, 318-319 , 144 N.W.2d 303, 306 , and authorities there cited. However, the majority opinion destroys these rights under circumstances over which the party entitled thereto has no control. Such a drastic result should not be based on a statute which neither by express provision nor by implication purports to deal with the subject at all.
The majority concludes its result is required by the particular wording of our statute. Faced with similar, though not identical statutes, other courts have not been persuaded that such provisions are concerned with claims for either contribution or indemnity. Ainsworth v. Berg, 253 Wis. 438 , 34 N.W.2d 790 , 793, 35 N.W.2d 911 ; Royal Car Wash Company, Inc. v. Mayor and Council of Wilmington, Del., 240 A.2d 144, 146 ; Valstrey Service Corporation v. Board of Elections, 2 N.Y.2d 413 , 161 N.Y.S.2d 52 , 141 N.E.2d 565, 566 ; Minneapolis, St. Paul and Sault St. Marie Railway Company v. City of Fond Du Lac, 7 Cir., 297 F.2d 583, 585 , 93 A.L.R.2d 1378 ; Gorski v. Commercial Insurance Company of Newark, D.C. of Wise., 206 F.Supp. 11, 14 ; Albert v. Dietz, U.S.D.C.—Hawaii, 283 F.Supp. 854, 857, 858 ; Corning Glass Works v. Puerto Rico Water Resources Authority, Inc. (1st CCA), 396 F.2d 421, 424 ; Hennington v. Valuch, 19 Wis.2d 260 , 120 N.W.2d 44 ; Keleket X-Ray Corp. v. United States, 107 U.S.App.D.C. 138 , 275 F.2d 167 ; Globig v. Greene & Gust Co. (E.D.Wis.), 184 F.Supp. 530, 533, 534 . These authorities hold such statutes are limited in their application to claims asserted by the injured party. I agree.
Several principles may be stated from the foregoing cases which should decide the present controversy; (1) Statutes such as our section 613A.5 are operative only as between the primary parties; (2) Statutes and rules of practice permitting contribution and indemnity should not be abrogated at the caprice of the injured party, who may by either inadvertence or design elect to hold only one tort feasor entirely responsible ; (3) In many cases involving statutes similar to section 613A.5 the right to contribution or indemnity under the rule adopted by the majority will have already been lost before the primary claim is asserted.
It is inconceivable that chapter 613A intended to accomplish a result both so inequitable and so unnecessary. The language in Albert v. Dietz, supra, at page 857 of 283 F.Supp., seems particularly pertinent :
“The county non-liability act [requiring notice of injury from defective streets or sidewalks before the county could be held liable] clearly was not intended to impose a statute of limitations upon the right of one joint tortfeasor against another but * * * *519 was, basically, directed only at undue delay in the commencement of suits by injured persons.”
The authorities which the majority relies on — principally those from Minnesota and Michigan — do indeed justify the result the majority reaches. However, in my opinion they should not be followed.
They are based, in part at least, on the erroneous premise that common liability must be present when contribution or indemnity is sought to be enforced. Since the injured party could no longer sue one of the alleged tort feasors because of failure to give the statutory notice of claim, those cases reason there can be no common liability to permit contribution or indemnity. The majority seems to adopt that view without specifically saying so. However, the overwhelming weight of authority is that common liability need exist only at the time the injury or damage occurs. In 18 Am.Jur.2d, Contribution, section 86, page 122, this statement appears :
“While the common liability to the injured party must have existed before any right to contribution can arise, it is not essential that it should have continued until the time when contribution is sought, and it may be enforced after liability to the injured person or his representative has been extinguished by payment of the judgment or by the bar of the statute of limitations.” See also Godfrey v. Tidewater Power Company, 223 N.C. 647 , 27 S.E.2d 736, 737 , 149 A.L.R. 1183 ; Schott v. Colonial Baking Co., W.D.Ark., 111 F.Supp. 13, 21 ; White v. Johnson, 272 Minn. 363 , 137 N.W.2d 674, 679 ; 18 Am.Jur.2d, Contribution, section 14, pages 28-29. See also dissenting opinion in Morgan v. McDermott, 382 Mich. 333 , 169 N.W.2d 897, 907 .
We have seemingly recognized this rule ourselves. For instance in Allied Mutual Casualty Company v. Long, 252 Iowa 829, 837 , 107 N.W.2d 682, 686 , we quoted with apparent approval a statement of the Wisconsin Supreme Court that there must be a common liability “at the time of the accident created by their concurring negligence,”
While the foregoing is enough to require an affirmance, there is still another reason I disagree with the majority.
The city is sought to be held liable because of defective maintenance and supervision of its streets and sidewalks. That liability does not depend on chapter 613A; it arises under the provisions of section 389.12, Code of Iowa. Perhaps it could be brought under either statute, a matter it is unnecessary to decide here. But certainly it is maintainable without benefit of chapter 613A. This is best shown by section 613A.3, where the legislature noted that claims under section 389.12 were distinct and separate by referring to actions “subject to the provisions of this chapter or section 389.12 of the code."
Parenthetically I add this also demonstrates the reliance of the majority on chapter 613A as creating a new cause of action to which the notice provision of section 613A.5 is attached as a condition precedent to liability is entirely misplaced. This cause of action antedated chapter 613A by some one-hundred years.
I can find no language in section 613A.5 which demands notice be given as to a claim arising under section 389.12. It provides for notice only as to claims “within the scope of section 613A.2.” As already pointed out, this claim does not necessarily fall within that limitation.
However, even if the majority’s view of section 613A.5 prevails, the result should be the same. When, as frequently occurs, two established rights conflict, courts must try to accommodate one to the other to accomplish that result which best preserves the purposes of each without doing violence to either. To me it is clear this demands an affirmance of the trial court.
Again going to Albert v. Dietz, supra, 283 F.Supp. at page 857 for support, I find *520 the following language used there to be particularly applicable:
“Nevertheless, if the terms of Section 138-21 [requiring notice of injury to be filed with the county] were to be strictly applied the defending tortfeasor would suffer an injustice and an impairment of his statutpry rights [of contribution from a joint tortfeasor], far, far greater than that which would be lost by a county if its protective non-liability act were not literally applied.”
We should apply this rationale here. I find it unfortunate in this case of first impression, when we have the rather rare opportunity of choosing which of two courses — each supported by ample authority —to follow, that the majority has selected the one which leads to an inequitable result which is neither required nor justified by the statute in question.
I would affirm.
MASON, BECKER and UHLENHOPP, TJ., join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9687915. Public record. Not legal advice.