On July 13, 1953, а collision occurred between a truck operated by the plaintiff and an automobile driven by the defendant Yerkes. Plaintiff’s vehicle was proceeding east on Highway 30 about one mile west of the junction of Highways 30 and 14, in Marshall County. The defendant was going west, following a truck driven by the proposed third-party defendant, Cross. For the sake of brevity and to avoid confusion, the plaintiff will hereinafter be referred to as Best; the defendant as Yerkes; and the third-party defendant as Cross.
The matter was determined upon the pleadings; but it seems to be tacitly conceded, and we shall so assume for the purpose of this discussion, that at the time of the collision Yerkes was on his wrong, or left-hand, side of the road. On July 11, 1955, plaintiff filed his action against Yerkes, alleging damages in the total sum of $10,748.70. The specifications of negligence against Yerkes may be summarized as these: Driving at an excessive speed under existing conditions; driving at a speed greater than that which would have permitted him to stop his vehicle within the assured clear distance ahead; failing to maintain a proper lookout; and failing to yield one half the traveled way when meeting plaintiff’s vehicle.
Yerkes answered, in effect denying generally, and specifically alleging that the collision was proximately caused by the negligence of Cross. On July 13, 1955, Yerkes filed his motion supported by affidavit, the substance of the motion being this:
“That Denver M. Cross be brought into this action as a party defendant, on the grounds that defendant C. Harland Yerkes will, if held liable herein, be entitled to a right of action against said Denver M. Cross for any damages which may be adjudged against him, to the end that the rights of all concerned may be determined in one action, as provided by Rule 33(b), Iowa Rules of Civil Procedure.”
*803 On tlie same date that the motion ivas filed, the Marshall District Court, through Judge M. C. Farber, granted the motion ex parte. On July 20, 1955, Yerkes filed his cross-petition against Cross. He alleged that on July 13, 1953, about 9 :45 a.m., Cross was the. owner and operator of a motor truck which he was driving west on Highway 30; that Yerkes was proceeding carefully behind Cross’ truck; that as Cross’ truck was about to meet the east-bound vehicle of Best, Cross suddenly and without any signal or warning slowed the speed of his truck so as to bring it to a stop or “near stop”; that the Cross truck was not equipped with an operating brake light for signaling traffic to its rear; that upon the sudden slowing of the Cross truck Yerkes was faced with an emergency and to avoid colliding with it applied the brakes of his automobile and attempted to guide his car to avoid a collision, but was unable to do so and collided with the Best truck. It is alleged both Best’s and Yerkes’ vehicles were severely damaged and Best “may have sustained bodily injuries to an extent not known” to Yerkes. The commencement of an action against Yerkes by Best alleging Yerkes’ negligence is also pleaded.
After pleading his own freedom from contributory negligence, Yerkes in his cross-petition makes these specifications of negligence against Cross: That he stopped or suddenly decreased the speed of his truck without giving an appropriate signal; he failed to have his truck equipped with a proper signal device to give notice of intent to stop; the brakе light on the rear of the Cross truck was defective; knowing of the approaching Best truck, Cross entrapped Yerkes by slowing the speed of his truck without giving an adequate signal, thereby causing an emergency; Cross operated his truck at a speed which was less than reasonable and proper in view, of existing conditions.
We summarize the prayer of Yerkes’ cross-petition: That it be found Yerkes was in no manner at fault in the collision with Best; that he have judgment against Cross,for the.damage to his automobile in the sum of $849.13; that if it be .adjudged Yerkes was in any manner or amount liable to Best, Yerkes have judgment over against Cross for any amount recovered by Best against Yerkes, or in the alternative that he have a right of contribution against Cross:
*804 Thereafter Cross filed his motion to set aside the order which permitted him to be brought in as a third-party defendant, alleging: That said order was made ex parte and without notice to Cross; that rule 33(b) has no application to the facts in the ease, there being no right of action over against Cross even if Best should recover a judgment against Yerkes; there-is no provision in law for the granting of the relief demanded in the cross-petition.
It should be noted that the plaintiff, Best, has taken no part in the proceedings relative to the third-party-defendant proсedure, the contest here being entirely between Yerkes and Cross. Nor is the ruling of the triál court, that since the original order bringing in the third party was made ex parte it was not binding upon Cross and so Cross’ motion to set it aside should be considered as if he had resisted the motion before it was granted, in any way challenged. The court set aside the order making Cross a defendant, and it is this order that is attacked here, leave to appeal having been granted.
The appellant, Yerkes, urges that since the motion to set aside the order was also labeled a “motion to dismiss” and challenged the sufficiency of the facts set out in the cross-pеtition, such facts must be taken-as true. We think this does not aid him. The court did not grant the motion to set aside because of insufficiency of the pleaded facts, but because it thought its determination involved the sound judicial discretion of the court. It said:
“Defendant’s action on his counterclaim (cross-petition) involves many elements wholly foreign to the issues between plaintiff and defendant. The status of the defendant on the issue of negligence in the main ease and contributory negligence in the cross-petition would be confusing to a jury. The cross-petition prays for'judgment for damages to the defendant’s car, an issue having no possible cоnnection with the original ease. These and other elements of confusion would be created by trying the two cases together.” The court clearly concluded it was within its proper discretion in setting aside the original ex parte, order permitting Yerkes to bring Cross into the case, as a third-party defendant, and it placed its ruling on that ground.
*805 I. The principal contention between the opposing parties here concerns the question of the right of indemnity or contribution between joint tort-feasors. The appellee Cross supports the ruling of the court by urging that in any event under the case as made by the pleadings Yerkes could nоt recover from Cross, because if Cross were guilty of any negligence it would be at the most no more than negligence which concurred with that of Yerkes in causing the injuries to Best. Of course, if Yerkes’ defense to Best’s claim, that the negligence of Cross was the sole proximate cause of the collision, should be sustained upon a trial, there would be no right of “recovery over” against Cross because Yerkes would not be indebted to Best. But if Yerkes were held guilty of some negligence and so required to respond in damages to Best, then the appellee thinks that Yerkes and Cross would be at the most no more than joint tort-feasors, and neither could recover from the other.
The right to indemnity, or contribution, presupposes actionable negligence of both parties toward a third party. 20 R. C. L. 138. It is said in City of Weatherford Water, Light & Ice Co. v. Veit, Tex. Civ. App.,
We have many times expressed the general rule that there can be no contribution between joint tort-feasors. But we have not squarely met and decided the precise question with which the instant case confronts us. It is this: Assuming that active but unintentional negligence of two parties concurs to injure a third party, do the two tort-feasors have a right of contribution against each other? The origin of the rule that such contribution may not be had is apparently in the English case of Merryweather v. Nixon, 8 T.R. 186. The logic behind it was said to be that where two persons are each guilty of an intentional wrong toward a third party, and one is compelled to bear the whole or an unequal share of the • burden of recompense, thе law will *806 leave them .where it finds them; it will not interfere to settle controversies between such wrongdoers. As the law was developed, the rule has been generally, although not universally, applied to all joint tort-feasors; not only to those guilty of moral turpitude, but to those whose offenses are merely malum prohibitum. But there are many distinctions and exceptions, and it is fair to say that the law, as laws have a tendency to do, has become considerably confused.
• While stating the general rule, this court lias recognized and applied many exceptions. Thus, in cases of derivative liability, where a principal or employer has been held negligent only because of some act of his agent or employee, he has been allowed to recover indemnity from the one guilty of the actual negligent act. Weidert v. Monahan Post Legionnaire Club,
It is possible here that, as between Yerkes and Cross, a trier of facts might decide that Cross was entirely at fault. Central States Electric Co. v. McVay,
While aa’c haA-e in several cases stated the general rule that contribution may not be had by one joint-tort-feasor from another, this court has not discussed the distinction between those cases where the tort Avas an intentional Avrong, involving moral turpitude and deliberate Avrongdoing, and those involving only inadvertences, such as negligence. We have spoken of “active” and “passive”, and of “primary” and “secondary”, negligence. But the terms aid little, and in fact are often difficult to define. Perhaps the majority of courts hold that íavo persons guilty of concurring acts of negligence which are together the proximate caxise of an injury to a third party are joint tortfeasors within the meaning of the rule. See Union Stockyards Co. v. Chicago, Burlington & Quincy Railroad Co.,
Wisconsin has for some time followed the rule that there may be contribution AA7henthe injury to the third party was caused by the concurring negligence of the tort-feasors, without actual intent to harm him. The case of Ellis v. Chicago & Northwestern Railway Co.,
“The facts out of whieh the injuries in thе present case arose involve no moral turpitude, wilful or conscious wrong on the part of either the Railway Company or the Traction Company, and, under such circumstances we think the rule allowing contribution should be followed.”
The case of Mayberry v. Northern Pacific Railway Co.,
Wisconsin has followed the rule of the Ellis case in later cases. See Wait v. Pierce,
Minnesota seems to have adopted and followed the rule permitting contribution where there was no intentional wrongdoing. In Ankeny v. Moffett,
Later Minnesota eases, turning upon other points, seem to assume without discussion that the rule permitting contribution where there has been merely concurring negligence without intentional fault applies. Gustafson v. Johnson,
The Pennsylvania Supreme Court, in Goldman v. Mitchell-Fletcher Co. and Philadelphia Rapid Transit. Co.,
The question was thoroughly discussed and analyzed in George’s Radio, Inc. v. Capital Transit Co., 75 App. D. C. 187,
Without extending this, division of the oрinion further by a discussion of the applicable reasoning and authorities, we are of the opinion that appellee Cross’ attempt to uphold the ruling of the trial court on the theory that in no event could there be a recovery over by Yerkes must fail. There is here no claim or showing of an intentional wrong, or of moral turpitude or any concerted action by the alleged tort-feasors, We hold the true rule to be that under such circumstances there is at least a right of equitable contribution between them.
II. We have pointed out that the court actually seems to have placed its ruling upon the discretion which it undоubtedly had in granting the motion under Rule of Civil Procedure 33(b) to bring in a third-party defendant. We have ourselves held that such discretion exists. Logan v. McMillen,
*811 We are cognizant of the appellant’s, Yerkes’, contention that no problem of discretion is involved here, since appellee Cross ’ motion to dismiss must be taken to admit all well-pleaded facts, and it raised no such question. But we are limited to the record as made in the lower court, and by the errors assigned here. Only one error is assigned: “The Court erred in sustaining Appellee’s Motion to Set Aside Court Order and to Dismiss Cross-petition * * * for the reasons that it did not take into consideration all the facts and circumstances involved in the accident as above described and that it failed to consider the proper meaning and application of Buie 33(b).” This seems to say that the court overlooked certain facts which it should have considered and failed to construe the rule properly; items which we think are a challenge to the fair exercise of the court’s discretion.
We are also confronted with the ground upon which the trial court placed its ruling. We
grant that a
court may not ordinarily sustain a motion upon grounds not urged therein (Gross v. Hocker,
The plaintiff has neither joined nor affirmatively acquiesced in Yerkes’ motion to bring in Cross, nor has he objected thereto. He asserts no claim against Cross. We are left with the question whether the court, having a sound judicial discretion in the matter, abused it in denying Yerkes the right to bring in Cross as a third-party defendant.
Our rule 33(b) is taken from the Wisconsin statute, section 260.19, and is analogous to Federal rule 14, 28 U.S.C.A. Cook, Towa Rules of Civil Procedure, Yolume 1, pages 230, 231. Accordingly the interpretation placed upon the Wisconsin statute by the courts of that state is highly persuasive. The Wisconsin Supreme Court has on several occasions said that the trial courts of the state have a considerable discretion in applying the rule, and it has uniformly refused to interfere with the exercise of such discretion, or to find abuse thereof. In some cases the discretion has been exercised in favor of bringing in the third-party defendant, in others in excluding him.
In Kresge v. Maryland Casualty Co.,
“The controversy between the parties to this suit can be fully and finally settled without the presence of the Furniture Company. Tt is not necessary that the latter company should be made a party for its protection, because it is not concluded by the result reached on any question litigated in the present action in which it is interested. We do not pass upon the question whether the court in the exercise of its discretion might not have *813 made the order asked for. We simply hold that it is not an abuse of discretion to refuse to do so.’ ’
The Wisconsin statute applicable, now 260.19, supra, was not mentioned in the case; but that it was considered see Schmuhl v. Milwaukee Electric Railway & Light Co.,
Ertel v. Milwaukee Electric Railway & Light Co. and Milwaukee Western Fuel Co.,
The Minnesota case of Gustafson v. Johnson, supra,
An interesting case upon the point is General Taxicab Assn. v. O’Shea, 71 App. D. C. 327,
New York, in its Civil Practice Act, as amended in 1923, has a statute much like our rule 33(b). The courts there have consistently held that its application is governed by the sound judicial discretion of the trial courts. In Greenhouse v. Rochester Taxicab Cо.,
In Logan v. McMillen, supra,
“Since they were not parties to the action when defendants’ motion was filed nor when it was ruled on, had they then mоved the court to reopen that proceeding in order to permit them to resist defendants’ motion their motion or application might well have been granted. But they did not do so. Had they challenged defendants’ motion the outcome of their attack might have rested in the sound judicial discretion of the court, as ruled in Dosland v. Preferred Risk Mutual Insurance Co.,242 Iowa 1220 , 1224, 1225,49 N.W.2d 823 , 29 A. L. R. 712
That a motion to bring in third-party defendants is addressed to the fair discretion of the court is settled in Iowa. We have before us at this point only the question whether this discretion was abused. Discretion is an elastic term, and an attempt to define or classify it is a difficult undertaking. “Abuse of discretiоn” does not necessarily imply a dishonest motive or act; it is not ordinarily a term of reproach. There
*816
is no hard and fast rule by which to determine whether a court has abused its discretion. It arises from action beyond the bounds of fair discretion, exceeding the bounds of reason. It has been defined as “an erroneous conclusion and judgment, one clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” McFarlan
v.
Fowler Bank City Trust Co.,
The modern trend, evidenced by the almost universal reform in rules and laws affecting civil procedure, is to combine in one litigation all actions arising out of one transaction. Our Rules of Civil Procedure are to be liberally construed to this end. Judge Bliss discussed this development and quoted with approval from section 17.05, Volume 6, Cyclopedia of Federal Procedure, Third Ed., and from Barron & Holtzoff, Federal Practice and Procedure, Volume 1, section 422, page 838, in Logan v. McMillen, supra, pages 1337 and 1338 of 244 Iowa, page 503 of 60 N.W.2d. If the trial court had permitted the bringing in of the third-party defendant it might have been nearer to the spirit of the rules.
But our problem is not whether we would have exercised judicial discretion to the same еnd as did the trial court, but whether that court went beyond its fair discretion. In a majority of the cases cited above the motion to bring in third parties was denied; yet in no such case did the appellate court find an abuse of discretion. Many of these courts had before them fact situations much like those made by the pleadings in the case before us. The trial court here was of the opinion that the status of the defendant Yerkes on the issue of negligence in the main case and of contributory negligence in the cross-petition against Cross would be confusing to the jury; and it also commented upon Yerkes’ claim for damage to his car, an issue having no possible connection with the original ease. It said: “These and other elements of confusion would be created by trying the two cases together. ”
It is our conclusion that we cannot say the trial court acted unfairly, arbitrarily or unreasonably in denying the motion. We may doubt that the possible confusion in the case, as *817 a disadvantage, would overweigh the advantage to be gained by trying all the issues in one lawsuit. Yet this was a matter within the sound discretion of the trial court; and to say that it went beyond such discretion would in effect be to deny the existence of any discretion, and to fly in the face of the numerous authorities from оther jurisdictions which have upheld the exercise of such discretion under comparable facts.
If we were to adjudge this controversy upon the case as made by Cross’ motion to dismiss, it is clear from the discussion in Division I that we should reverse. But the court did not place its ruling on any grounds set up in the motion. It said that it considered the matter as though it were ruling upon the original motion to bring in a third-party defendant; and this part of its ruling is unchallenged here. It then proceeded to find that in the exercise of a fair discretion the motion should be denied. Considering that it was ruling upon the motion to bring in Cross as a third party, it had the right to exercise its discretion even though such motion was resisted upon erroneous grounds, or was not resisted at all.
For the reasons set out in Division II we affirm the ruling of the trial court.- — Affirmed.