National Farmers Union Property & Casualty Co. v. Nelson

Snell, J.

I respectfully dissent. I think a remand under the conditions outlined will give to a new jury a second guess on matters that have been determined.

Common liability has been established. Bring’s negligence is admitted. Nelson’s negligence has been established by a jury’s answers to special interrogatories. In that action Mrs. Nelson and the children in the ear sought recovery. Mrs. Nelson’s negligence would not be imputed to the children. In denying the claim of the children it necessarily follows that the jury found the proximate cause to be Mrs. Nelson’s negligence.

Nowhere in the record is there any suggestion of any negligence on the part of Pedersen that would bar recovery from either Bring or Nelson.

*175The question as to whether Bring or Nelson was more negligent is of no importance.

In Iowa we do not consider comparative negligence. The relative negligence of Bring and Nelson is not an issue. Each had been found negligent. As a matter of law there was a common liability. For common liability concurring tort-feasors need not be in pari delicto as between themselves. See Law v. Hemmingsen, 249 Iowa 820, 826, 89 N.W.2d 386.

The right to contribution may rest upon settlement of litigation. It is not limited to payment of a final judgment. Hawk-eye-Security Insurance Co. v. Lowe Construction Co., 251 Iowa 27, 35, 99 N.W.2d 421. The negotiated settlement must be fair, reasonable and just. Loc. eit. 32. This does not mean that in a later action for contribution there is a right to a jury trial to determine how much the injured party might have recovered. The amount of recovery has been established by agreement. Settlements are recommended and favored by the law. The reasonableness of the settlement was for the court and not for second-guessing by a subsequent jury.

The reasonableness of the settlement is not seriously disputed. Negligence and liability were apparent. The injuries were serious, recovery was slow, and the special damages were large in amount. From the premise of defense against Mrs. Pedersen’s claim the psychology was bad. She was a comparatively young widow, a schoolteacher and the sole support of two children. It was suggested that she would be brought to the courtroom on a stretcher. The financial exposure was great.

I think there is such privity of parties as necessary to support this action.

Nelsons sued Bring and the case was tried to a jury. The question of Nelson’s negligence was decided. Bring’s insurance carrier, standing in the shoes of Bring, now sues Nelsons. The parties are in privity. The parties are reversed and the causes of action are not the same but the same parties are interested and the issues are essentially the same, i.e., who was negligent.

The essential elements for contribution have been established. I find no reason to approve relitigation of the particular facts or issues. Stucker v. County of Muscatine, 249 Iowa 485, *17687 N.W.2d 452; Hoskins v. Hotel Randolph Co., 203 Iowa 1152, 211 N.W. 423, 65 A. L. R. 1125; Radmacher v. Cardinal, 264 Minn. 72, 117 N.W.2d 738; Lustik v. Rankila, 269 Minn. 515, 131 N.W.2d 741.

The practical value of the right to contribution is greatly-diminished by the majority opinion. Except where common liability is admitted or has been established by jury verdict in the same lawsuit a retrial of all issues inherent in damage actions will be required.

Except for the allowance of attorney fees included in the trial court’s judgment I would affirm.