I desire to respectfully dissent as to Division II of the majority opinion. I agree with the majority that there was a fact question for determination as to the negligence of the appellant, but disagree with their conclusion that the court, under the record, had a right to pass upon that question to the exclusion of the jury. The holding of the majority in that respect, in my judgment, misconstrues the record and the proper application of the new Rules of Civil Procedure. *Page 92
I. As I read the opinion of the majority it simply adds up to a holding that appellant deprived himself of the right to insist upon a jury trial by failing to observe the provisions of Rule 177. It seems to me that when there is taken into consideration the entire record, the majority opinion confirms an action of the lower court which had the effect of depriving appellant of a certain valuable right. When we come to interpret the new Rules it is well to keep in mind their history and background. We can start out with the proposition that the object of the law as enforced by court procedure is to do justice. There had grown up complaints as to old rules, that they were working in an opposite direction. Delays, procrastinations, uncertainties, and technicalities were said to be working hardships and injustices. To avoid such was the moving force behind the creating of the new Rules. We can ill afford at this time to apply the new Rules in such a manner as to indicate a return to the conditions complained of.
In order to pass upon this controversy upon its merits it seems to me that it is not necessary to indulge in any refined reasoning. Certainly the new Rules did not contemplate anything of such a nature. The simple claim of the appellant is that a misconstruction of the Rules by the court deprived him of a right which is guaranteed, and this in the face of a showing that he sought at all times to avail himself of that right. The net result is that he is penalized by the failure of others to perform an official duty.
The court held that appellant had barred his right to a jury trial by failing to comply with Rule 177, one of the new Rules of Civil Procedure, effective July 4, 1943. These Rules were created pursuant to chapter 311, Acts of the Forty-ninth General Assembly. Among the purposes stated in such act, as expressed in the title, were, "* * * the purpose of simplifying the same and of promoting the speedy determination of litigation on its merits." In its report to the legislature on January 28, 1943, by this court, these objects and purposes were again set forth.
Rule 177 relates to trial by jury in civil cases. It supersedes sections 11429 and 11519, Code of 1939, both relating to the right of trial by jury. It is as follows: *Page 93
"Demand for Jury Trial.
"(a) Jury trial is waived if not demanded according to this Rule; but a demand once filed may not be withdrawn without consent of all parties not in default.
"(b) A party desiring jury trial of an issue must file a written demand therefor, either by endorsement on his pleading, or within ten days after the last pleading directed to that issue.
"(c) Unless limited to a specific issue, every such demand shall be deemed to include all issues triable to a jury. If a limited demand is filed, any other party may, within ten days thereafter or such shorter time as the Court may order, file his demand for a jury trial of some or all other issues."
Here it will be noted that the new Rule (177) is an abrupt and radical departure from the statutory procedure preceding it. Under the old procedure, a litigant, in a proper case, had an absolute right to a jury trial unless he waived that right in the manner defined by statute. Under the new Rule it is claimed that he is not entitled to a trial by jury unless he takes affirmative action as set forth in Rule 177. In construing this new Rule, certainly we should take into consideration the former statutes and rules of procedure. Here it is claimed that appellant did not follow the Rule (177) and consequently cannot complain. Appellee argues that by so doing the appellant waived his right.
II. Turning to the record in this case we find that Hoffman and Carter, attorneys, of Leon, Iowa, acting on behalf of appellee, on November 3, 1943, filed a petition asking for damages on account of negligence of the appellant. On November 15, 1943, appellant filed an answer controverting the allegations of the petition. The case then stood fully at issue until February 16, 1944, when appellee filed an amendment to her petition. Neither party had demanded a jury trial before the trial began on March 1, 1944. The amendment of February 16th coincided with the appearance in the case of Slaymaker, Killmar, and Slaymaker, on behalf of appellee. The amendment had the effect of changing and enlarging the issues in the case. This amendment, so far as appellant was concerned, did not come to his attention until March 1, 1944, when O.M. Slaymaker was examining a witness. *Page 94 The record shows without dispute that the copy filed with the amendment had never been given to the attorney for appellant, as provided in Rule 82. Rule 82 is as follows:
"Filing, Copies, Delivery. All motions and pleadings, with copy, shall be filed with the clerk, except that no copy of the petition need be filed if a copy was attached to the original notice served upon each defendant. Sufficient additional copies of all motions and pleadings shall be filed to afford a copy for each adverse party appearing, but if more than one such party appear by the same counsel, only one copy need be filed for such parties. It shall be the duty of the pleader to file the required copies with the original if he then knows of the appearances; otherwise, immediately upon receipt of notice thereof to be given by the clerk. The copies shall be mailed or delivered forthwith by the clerk to the attorney of record for the adverse party or parties, if appearance is by attorney; otherwise to the parties."
Appellant did not have notice of the amendment of February 16th. This stands uncontradicted. So far as he was concerned, it would be held to have been filed on March 1, 1944, and, in that case, he would be entitled to have applied Rule 85 (d); also Rule 88. This last-cited Rule (88) relates to the filing of amendments. Included in the Rule is the provision that the court may allow such "which do not substantially change the claim or defense."
Appellee did not seek or obtain from the court permission to file the amendment of February 16th. An examination of the amendment filed on February 16, 1944, readily shows that it did substantially change the claim of appellee.
It seems to me that the record amply supports appellant's claim that when the trial of the case began on March 1, 1944, the same was not at issue and that the court erred in not granting the demand of appellant for a jury trial. Prior to February 16, 1944, the case stood at issue and ready for trial. Otherwise, it would not have been placed in the assignment on January 24, 1944. It so remained until February 16, 1944, when the Slaymaker firm came into the case. This amendment and copy were left with the clerk as provided by the Rules. The very Rule *Page 95 upon which the court acted gave the appellant the right for which he was contending.
The action brought was based upon certain claimed negligent acts on the part of the appellant. These claimed acts were set forth in the petition of appellee. The amendment filed on February 16, 1944, begins with the statement, "that she [appellee] adds to the grounds of negligence charged against the defendant [appellant] the following." The amendment had three paragraphs. Paragraph 1 is subdivided into four parts; the other two are each in a single paragraph. The first two parts of paragraph 1 are as follows:
"(a) That the defendant when operating his truck at the time and place that he ran into the decedent, and for sometime prior thereto, failed to have the same under control and did not reduce the speed to a reasonable and proper rate, all as required by Code Section 5023.04.
"(b) That the place where decedent was injured was on a crossing or intersection of public highways, and when the defendant was approaching and traversing said crossing or intersection of said public highways he did not have his truck under control and did not reduce the speed to a reasonable and proper one, all as required by Code Section 5023.04."
Paragraph 2 sets out an entirely new and separate claim for damages, such as medical expense, hospital bill, and expense of burial.
It seems to me that the amendment in no sense was intended as an elaboration of the allegations of the petition, but had for its purpose to set forth two separate and distinct claims. I do not understand that either the court or appellee contended otherwise. The petition made no reference to such items of damages or to any claim of negligence that appellant had failed to comply with the provisions of section 5023.04 in approaching intersections.
When we consider that the boy was struck and killed at the intersection of the side road with the main highway it can readily be seen that the amendment raised a new, separate, and distinct charge of negligence. The petition contained no *Page 96 allegation whatever upon the issue raised. The items of damage are entirely new.
The record shows that the amendment was not called to the attention of the appellant until during the examination of appellee, at which time certain questions were asked her about the items claimed in the amendment. We set out the record:
"[Mr. Hawkins] Mr. Slaymaker, do you have an Amendment on file in this case? [Mr. Slaymaker] You will find it there. [Mr. Hawkins] I haven't been served with a copy of it. [Mr. Slaymaker] It was filed. I think you may take the witness. [The Court] Hereis the copy in these files."
In view of the nature of the amendment I do not think that the case was at issue on March 1, 1944. On March 2, 1944, following the discovery of the amendment, Attorney Hawkins stated that he wished to dictate an answer thereto into the record. Mr. Slaymaker suggested, and the court approved, the adoption of the original answer to the amendment. It is needless to say that at that time the appellant could have filed a separate pleading to the amendment. He could likewise have moved to strike the same or to require it to be more specific, or as being filed too late and after the case had been assigned. The appellee made no objection to the answer to the amendment; in fact, Mr. Slaymaker suggested it. Under Rule 177 (b) a party pleading could endorse a demand for a jury on any pleading. No time for such endorsement is stated in the Rule. Also he can make such demand within ten days "after the last pleading directed to that issue."
The record shows that appellant's demand for a jury was dictated into the record. No objection was made to this form of a demand. Anyone familiar with court procedure knows that pleadings, motions, etc., are dictated into the record. This court upheld such procedure in Calhoun v. Robinson, 180 Iowa 538,544, 163 N.W. 374. The demand was timely. The court in refusing appellant's demand for a jury trial did not correctly interpret Rule 177 when it stated, "* * * and the defendant if he desires a jury, must file his demand at the time he files his answer in the case." The court evidently was of the opinion that the written demand had to be endorsed upon the pleading. The Rule does not so provide. A party might be perfectly willing *Page 97 to try one issue to a jury and another to the court. I think the Rule recognizes such a situation. Under our court procedure the demand might be by separate pleading or be dictated into the record, as was done in this case. There can be no question that under a fair and just interpretation of the Rules, appellant, at the time he discovered the appellee's issue-changing amendment, had a right to insist upon a jury trial. While the whole record shows that appellant sought to have a jury at all times, the majority opinion rather questions whether a proper demand was made for a jury trial. Any doubt in this respect is removed by simply reading the record. The concluding paragraph of the demand of appellant for a jury, as dictated into the record, is as follows:
"Wherefore this defendant now demands that the issues as givenin the pleadings in this case be submitted to the jury for their determination as a regular jury case, and the defendant moves that he be accorded on this demand for jury trial."
The court did not hold that the demand had not been made; the court simply held that the appellant had not complied with the Rule, and the court's conception as to what the Rule required in that respect is because of a failure to correctly interpret such Rule. The court was of the opinion that the demand had to be endorsed upon the pleading. The answer to the amendment was a pleading and under the court's interpretation the appellant could have endorsed a demand for a jury trial upon that pleading. To adopt a pleading in effect is again pleading and speaks as of the date of its adoption. When appellant first learned of the amendment he acted promptly. He was not negligent; yet the majority opinion penalizes him on account of the failure of the clerk to perform a duty enjoined upon that official by the Rules. Certainly Rule 177 does not have any priority over Rule 82. How could appellant take action as to a pleading when its existence was unknown to him?
The demand of appellant for a jury trial was resisted by appellee by dictating into the record the following:
"The plaintiff denies that this case is in any jury assignment by any consent or action or conduct on her part; denies that she ever did anything to waive Rule 177 or did anything *Page 98 to give the defendant any right to a jury trial in this case, insisting all the time that the case was not one for the jury because no proper demand was ever made for a jury."
The court, in ruling upon the demand of appellant for a jury trial made on March 1, 1944, denied such demand, holding that appellant had not complied with Rule 177 and that, such being the case, the court was without discretion as to such allowance. I do not think the court was correct in holding that it had no discretion in the matter. Under the record showing that the case was fully at issue until the amendment was filed February 16, 1944, that such amendment changed the issues and did not come to the attention of appellant until March 1, 1944, because of the failure of the clerk to deliver to appellant the copy thereof, I think the court, under the Rule, had discretion in allowing appellant a jury trial and that the refusal of the court to grant such request amounted to an abuse of discretion.
I would reverse the case.
HALE, C.J., and MILLER and MULRONEY, JJ., join in this dissent.