*1 sumption of risk not be injected should development
into For the case.” fuller history assump- of encroachment ordinary negli-
tion of risk doctrine into cases,
gence Wright see dissent in Pe v.
terson, (1967). REYNOLDSON, JJ„
RAWLINGS and
concur in Division II hereof. GOOLSBY, Plaintiff,
Floyd
v. DERBY,
Zella M. the Es- administrator of Derby, tate W. W. Carl Carl a/k/a Derby, deceased, Defendant. DERBY,
Zella M. Es- administrator of the Derby, tate of Carl W. W. Carl a/k/a deceased, Derby, Cross-Petitioner-Appel- lant, COMPANY, Inc.,
E. G. STAATS Defend- Cross-Petition-Appellee. ant to
No. 54315.
Supreme Court of Iowa.
Sept. 9, 1971. *2 approximately west four a half miles and county an au- Albia in Monroe between Stanley operated
tomobile owned and Goolsby Floyd Dyke in which Van Swan passenger a an automo- riding as and Derby. operated by bile Carl owned W. is in- point question highway At right angles by gravel road. a tersected at Derby had Immediately before the accident high- proceeding been west from Albia on by the way some 34 followed distance Derby left At the Swan car. intersection on the paved highway, made a turn “U” graveled road and came onto back pavement evidently Albia. return east intersection, As approached he Swan pulled to the left of line. center impact high- in the south half of occurred way 34. Swan,
Goolsby employees of E. G. Inc., Company, a en route on busi- Staats & employer ness time of trip for their at the Derby injured. were both accident his injuries which sustained resulted death a few within minutes. Dull, Beaver, Ottumwa, and Keith & grow out damages law actions for Two Albia, Hugh Lundy, cross-petition- for W. proceedings The initial the accident. er-appellant. l by Floyd Goolsby against were instituted Moreland, Ottumwa, N. defend- for John Derby estate administrator cross-petition-appellee. ant to injuries He resulting impact. from the theory
predicated right recover Derby’s alleged negligence specifically as MASON, Justice. proximate the ac- set out was cause appeal is an from the trial court’s This cident. ruling sustaining the motion directed admitted Derby’s administrator answer Company, verdict made G. Staats E. allegations, some denied others Inc., cross-petition, defendant at separate affirmative divisions set forth two cross-petitioner, close of the evidence Goolsby’s alleged In one she defenses. Derby, Zella M. the estate administrator of specified proximate negligence was a Derby, her deceased husband. Carl collision, injuries damages cause presents whether this court other, she complains. he In the which exception general should make an specified negligence in asserted Swan’s rule now followed particulars' proximate cause sole operates relitigation bar collision, damages for injuries particular a different facts or recovery. Goolsby seeks which only where cause litigation privity. or in identical Goolsby allegations those reply denied negligence as bearing on his January
Around 8:45 a. m. which was and those Highway collision occurred on U. S. No. was the therefore sole is estopped Swan’s administrator from pursuing further the accident. satisfaction Goolsby either or Staats. phase This will be re- ferred as suit I. admitted the trial and verdict *3 I, appeal suit taken, that no was and satis- The administrator filed counterclaim faction of judgment. the which in against Goolsby involved the issue for before us. She also moved November in before suit II, Company, bring leave to in E. Staats Staats filed point” G. “admission of law admitting Inc. as a defendant the estate’s negligence Swan, new the any, if of proposed Rules was cross-petition. chargeable Rule of to and imputable to it as granted. employer. The Civil Procedure. motion was Rules 127 and R.C.P. cross-petition In the the administrator After jury comple- selection of the and alleged specific negligence against acts of II, tion of opening the statements in suit collision; proximate as a cause of the Swan Staats moved the court to rule that the employee was and in Swan an of Staats finding' by made the jury in suit I had -scope employment at the the of his time determined decedent, Derby, the negli- Carl accident; alleged negligence and his gent as a of operation matter law in the proximately causing im- the was collision his motor vehicle at place the and time putable employer. In one division alleged petition cross-petition. the sought damages she to her hus- loss jury asserted this motion such another, band’s estate and asked indem- Derby’s determination negligence was against nification or contribution Staats. the law of the case jury since the verdict finding negligence necessitated a such was cross-petition Staats in answer the the cause of collision and allegations admitted denied some recovery therefore his estate no could have company alleged others. amendment the against alleged Staats. further the mat- an specified defense acts of affirmative ter was judicata, res the administrator es- Derby’s negligence to be the topped from in this attempting to show proximate cause of the and his collision proceeding her decedent’s freedom from death. negligence therefore, her action should aspect involving be dismissed. presented cross-pe- the estate’s At stage proceedings, some in tition and answer be referred Staats’ will entirely record, clear from had been to as suit II. stipulated judicial that the court take no- pretrial At conference the estate’s motion complete proceedings tice file of the separate for a and later trial Goolsby’s in suit I— presented in suit II was sustained without Derby estate. resistance. Rule R.C.P. ruling The court until the close reserved Trial to a October 1967 suit cross-petitioner’s that At time evidence. plaintiff’s
I resulted in $12,643. verdict of asserting again its Staats renewed motion January 26, 1968, ground alleged motion Staats in answer to reference the estate’s cross-petition amended an addi- alleged made before trial added as re- turn of plaintiff’s ground the favorable tional evidence the contention the verdict in suit I appeal light and that no when in the was taken most viewed favorable and the judgment dece- company showed as a matter lawof satisfied. dent, alleged Derby, also in the jury by its Carl verdict found operation at the time sole and motor vehicle cause of the of his accident question. accident description motion, involving “A matter is a fair other foregoing separate parts, disposed consider shall grounds in which we the state of affairs assignment separate ruling errors. and not sus- each the administrator’s court Summarized, generally.” the trial tained she contends sustaining erred, motion (1) Staats’ Advisory portion This is a Com- of cross- at the close verdict made directed following mittee’s the rule: comment the ad- ground petitioner’s evidence “ * * * appellate and the Both the court as a negligent, decedent was ministrator’s parties should be entitled to what know held and law, if the court so matter of grounds upheld, shortening thus ground directing (2) verdict phases later No one is of the matter. liti- precluded from administrator harmed this.” her in suit II the gating anew *4 estopped negligence; decedent’s she was Trial courts would be well advised to pursuing satisfaction from further not, from though follow the rule even we have Inc; Company, defendant, E. G. Staats yet, any noncompli- reversed for case by the decisions and the estate was bound ance. jury finding in suit the accident the I Perhaps another reason for the adminis- question proximately in caused expressed uncertainty trator’s is Staats’ Derby’s negligence. contention asserted in in motions and writ- ten argument here that the evidence viewed giving description this detailed we in light the most favorable to the adminis- proximate “the have used “a cause” trator shows as a matter of the dece- law
proximate interchangeably, cause” dent was negligence and such selection in the use of but accordance with proximate ques- cause of in the accident plead- portions the term in the various tion. regard Staats’ contention in this is ings and motions. without merit and is basis for neither the I. In connection with the estate’s first the ruling trial court’s decision nor our assignment of error the administrator this matter. points urged grounds out two quote ruling: We from the trial court's as a a directed verdict—one basis motion before trial and at one motion “It is the holding order of this Derby’s the close of main- evidence. She plaintiff, Derby, court that M. ad- Zella argument, tains written “it is not clear Derby, ministrator of the estate of Carl W. ruling that the court’s is based on that precluded is now litigating from anew portion of the motion to direct the verdict question this suit the negligence urging contributory negligence a mat- Derby, estopped Carl W. that is ter argues of law.” For this reason she from pursuing further satisfaction from this is not a case where a directed verdict Staats; defendant E. that said defend- G. resting contributory negligence plain- ant jury is bound the decision the tiff’s justified decedent from a (Derby) October, finding that ac- review of the evidence in the record since question cident in was the the most favorable construction that could negligence Derby. of Carl W. placed be on the from Staats’ evidence standpoint jury question that a “It is therefore ordered that defendant’s gen- .is hereby erated on this motion sustain- issue. be the same petition ed. Plaintiff’s is dismissed uncertainty may The administrator’s court directs the to return a ver- now predicated to extent some on the trial defendant, .Staats, dict for the Inc.” GE. court’s failure to rule on the motion to provided quoted portion
direct as in rule It is to us from the R.C.P. clear We set ruling, particularly out the view rule: court’s pel article relied effect of a and law review judgment the cases former who was finding neither party to, on, is not based nor in ruling privity with, “a negligence to the judgment.” had established evidence prin- of law but rather as a matter note, author of the comment 31 A.L. from precluded his administrator was ciple R.3d at suggests: of her II relitigating in suit reason decedent’s phrase ‘stranger “The judgment’ negli- in suit I jury’s finding earlier seems appropriate phrase, more than the the col- cause of gence used, was a more ‘stranger often lision. judgment While, which the was rendered.’ ordinarily, stranger to this action is also gives ruling court’s This basis a stranger to judgment, nevertheless ap- by this question presented rise conceivably, a multiplaintiff to a peal. may effectively multidefendant action meritoriously suggested case, been dismissed having from the II. has been appro- clarity therein, participation it is discontinued interest of before opinion. rendered, in this then priate to terms used he is define a party judgment’ ‘to though even Note—Mutuali- from Comment We draw ” he was a ‘to action.’ *5 Prerequisite Availabili- as ty Estoppel to a Estoppel ty of Doctrine of Collateral Vestal, clarity, Professor for uses “claim Schop- by Stranger Judgment, E. H. to the preclusion” preclusion” in place and “issue ler, in A.L.R.3d 1044-1099 an annotation 31 term, judicata. generic res historical Vestal, Allan D. Judi- Preclusion/Res He “claim to mean that preclusion” uses 27, Parties, 50 Iowa L.Rev. cata Variables: prohibit- is litigation further on the claim of the issue. reaching a determination ed; is to preclusion” used while “issue specific a mean that further doc- the phrase “defensive use” of sug- the adopted issue have is barred. We to is here used trine of collateral opinion. gested definitions for this ordi- stranger judgment, mean that a to the action, the second narily the defendant purposes also of de- adopted haveWe as conclu- upon judgment a former relies suggestion that the Schopler’s cision Mr. favor an establishing in his sively mutuality” re- used as phrase “rule of of his prove an element he must as which a gen- that as ferring requirement to the defense. as operate can proposition judgment a eral parties estoppel only where all collateral hand, phrase the “offen- the other On judgment the proceeding the in which to doc- use” of the use” “affirmative sive or by judgment. the upon relied were bound stranger a to to mean that trine used abandoning in hand, the rule the other On judgment, ordinarily the requirement mu- or in whole action, upon a former relies the second to tuality estoppel will reference establishing conclusively judgment as “nonmutuality or the doctrine rule” prove as he must favor an issue which estoppel.” “unilateral his cause of an element of essential or claim. es- before collateral Traditionally, III. for three looks toppel applied, the court words, defensively judgment In other a identity raised of issues prerequisites: (1) offensively as as is used a “shield” and determi- (2) proceedings, in the successive “sword.” judg- by a final valid these issues nation of is neces- phrase determination “stranger judgment” to the is ment to which such priv- identity proceeding signify sary, (3) used to in- “mutuality of es- estop- as volving to ity, an issue as the collateral often referred 914 1044, privy
toppel.” stated, A Derby A.L.R.3d 1047. As estate’s action who, judgment, neg after rendition of the is based on the alleged is one theory Swan’s subject ligence, admittedly mat- acquired an interest if which established is through imputable or un- Company, ter affected to E. G. Staats was inheritance, parties, a proximate der one cause of the collision and Der succession, by’s purchase. plead upon In re Estate death. Staats relies 303, Marty, Derby’s negligence 256 Iowa 126 N.W.2d being a complete Bank America 306 and Bernhard v. collision as defense. Ass’n, 619.17, Trust 19 Cal.2d Section af Nat. & Sav. The Code. Under this ; 810-811, 31 A.L.R.3d firmative 122 P.2d defense thus had bur Staats “mutuality estoppel” proving den of negligence both decedent’s Under rule, stranger judgment, not a one and a causal connection between such al with, to, leged privity nor in and the collision. judgment, judgment, was not bound In suit I the court told order rely subsequently was not entitled Goolsby they to find determine must subsequent 31 A.L. its in a suit. effect Derby negligent; negligence, that his R.3d 1060. any, if was a of the col- lision; that administrator failed Baptist Dav In Third Ch. of Missionary Goolsby in a establish Garrett, enport 774- manner col- proximately which caused the (Iowa 1968) is this statement lision; if negligence, any, that Swan’s presently follow judicata res doctrine of (chargeable suit) in second ined Iowa: imputed Goolsby; not to be Gools- * * * the administrator could not recover if authority] : [citing “As stated proven its af- estate has res is well estab- judicata ‘The doctrine of *6 both that firmative defense was Swan may it under two lished and exist situa- negligent negligence was the and that such upon as bar second action (1) tions: a to a only proximate and of the acci- sole cause action, (2) and as a bar to the cause of dent. relitigation particular facts But in both a different cause of action. returning a in the verdict for By instances, iden- parties thereto must suit, no contribu- first found: (a) * * * privy tical or in thereto. As said Goolsby, (b) that tory negligence no barred [citing authority], one can be driving, not the negligent, if was “ Swan’s legal judicata he had ‘full res until proximate the acci- only sole and cause of investigation and deter- opportunity for an dent, Derby’s (c) conduct ” * * * [citing mination’ of the matter. both cause ” authorities].' accident. uphold Staats, seeking to proxi than one may be more there Since ruling, ask that we aban- does not court’s v. injury, Andrews Stru mate cause of an estop- mutuality requirement don the 391, it (Iowa 1970), ble, 398 178 N.W.2d to the pel judgment prerequisite as a necessary order sustain was not liability on jury’s imposing availability es- verdict of the doctrine of collateral negli determined in suit I that had toppel stranger judgment but of the collision. gence to be the sole ex- only modify the doctrine that we 60, McCalla, 67, 148 260 Iowa Henneman v. es- premitting use of collateral tent 447, 452. N.W.2d to de- toppel to allow order al- fensively relitigation an issue prevent answer Staats’ contention ready cross-petition determined. the estate’s amended 915 105; Bay Trastees of jury by its verdict Etc. Alex Green v. here that argument ander, 593; 801, cause of the 252 Iowa 108 N.W.2d the sole found 359, un- Phillips Cooper, 112 v. 253 Iowa to be accident 317; City v. of Des N.W.2d Crawford tenable. Moines, 861, 868; 124 255 Iowa N.W.2d rul- in its correct the trial court If 74, Marty, In re Estate of 256 Iowa 126 advanced the reason is not for ing it 303; Kaldenberg, In N.W.2d re Estate of in this contention. 388, 649; 256 Iowa National 127 N.W.2d (cid:127) Nelson, Farmers Union etc. Co. v. 260 Iowa the court’s principle for The basic IV. 163, 839; Steeve, 147 N.W.2d and Bloom v. pre- Derby’s administrator ruling that (Iowa Re 1969). N.W.2d 825 See also the issue in suit II relitigating cluded from statement, Judgments, section 93. negli- being both decedent’s conduct of her of the collision proximate gent and a Inc., Creamery, v. Stuart Jordan adverse- determined issues were since those 1, 259, 263-264, 9-10, Iowa 137 N.W.2d in suit jury’s verdict ly the estate question identity of ac- dealing with the preclu- of “issue I involves the parties identity or issues and tions doctrine use” of the and “defensive sion” privies, or their has this statement: estoppel. of collateral * “* * theory on which The foundation recognized there [W]e that the preclusion rests is doctrine of rule that an exceptions general litigate parties ought permitted to be operate estoppel anas adjudication does not Phillips than once. the same issue more privies. except between or their 359, 360, 112 Cooper, 253 Iowa N.W.2d Graham, 198 Bank v. Macedonia State 317, 318. 148, 14, 248, 34 A.L.R. Iowa N.W. liability applied where the we the doctrine hand, of col- the doctrine the other On culpa- party depended on the in tort of philos- predicated lateral already bility of another who have a full ophy that a should Hawley v. culpable. In adjudged not been day the issues fair in court to be heard on Davenport, Northwestern Rock Island and of action. involved this cause Co., 242 Railway meaning previously stated the We have in- of defendant favor use” of the doc- phrase “defensive con- plaintiff’s ground demnitor *7 purposes trine for of this decision. law was tributory negligence as a matter of subsequent suit judicata in a held to res be of the rule practical purposes, For all against the indemnitee. require- mutuality is with coextensive is preclusion plea ment that the of issue 242, page 22 23 of pages “On judgment only to the available to N.W.2d, limitation state the of we 516 45 variously ex- privies. This rule and his parties or to judicata of res the doctrine of in steadily adhered to pressed has been exception to broadening privies ‘has a their Light Iowa Kunkel v. Eastern Iowa. who, although not “persons the effect that 899; 649, Co-op.,232 Iowa 5 N.W.2d Power in- in privies, connected were so or 940, 33 Meyers, Iowa Aultman v. 239 * * * or defendant terest with Ramsay, 400; 240 In re Estate of N.W.2d may judgment action that in the former Boland, 651; 50, v. 35 N.W.2d State Iowa virtually recovered regarded be 770, 727; Young v. 41 Iowa judg- of such them, may avail themselves 111; O’Keefe, 248 Iowa 82 N.W.2d subsequent suit.” in a judicata as res ment Muscatine, County 249 Iowa v. of Stucker * * * may Judgments 757. § C.J.S. 452; Rich In re Estate of 87 N.W.2d extension an either be considered 777; ardson, 275, 93 N.W.2d 250 Iowa redefini- or aas res judicata Lynch doctrine Lynch, 250 94 N.W.2d important “privy”. term Its The in deter- tion of the classification most factors * ** availability mining of col- unimportant. is of the doctrine estoppel lateral lack notwithstanding a by question presented precise mutuality privity the doc- or are whether pre- an is issue assertion trine offen- estoppel of collateral used adjudication cluded of an earlier because sively ad- defensively, or whether the under is one present circumstances versely estoppel had affected collateral impression first for this court. opportunity litigate a full fair to re- effectively relevant issue action prerequisites Two of the three sulting 1052. judgment. in the 31 A.L.R.3d application heretofore mentioned mutuality present. strict rule of are positions containing expressions Cases negligence as a advisability pro and con on the was both in accident involved mutuality adhering rule of strict suit I and suit II and the raised opposed in whole abandoning the rule respect proceed this are identical both in the and discussed or are collected ings. Goolsby’s repeat, in suit I We Pro- 1044 and case note 31 A.L.R.3d theory Derby’s on the based conduct in 50 Iowa L.Rev. fessor article Vestal’s both by the trial court. acknowledged Both were of the collision. A determination of those necessary justify issues was the verdict make generally reluctant to Courts upon judgment suit I which a valid final mutuality exception rule where Goolsby. was rendered for col- urging the offensive use Staats, although brought Our estoppel damages. the contro- into lateral recover versy Derby’s cross-peti- jurisdic- perhaps as defendant to four research discloses tion, York, participation discontinued in suit I New Wis- holding Nevada, tions so — as a pretrial granting result of the order consin and District of Columbia. Derby separate the ex- a later liberal with courts been more claim ception mutuality collater- the administrator. to the rule where pur- proposed for defensive estoppel al estoppel The rule requiring mutuality of present is the poses bar an action. Such years. has been much eroded recent exception allowing this case. Jurisdictions However, jurisdictions which have aban- at in 31 are collected A.L.R.3d Juris- mutuality, doned the rule of whether in any denying addition to Iowa dictions in part, whole agree, expressly or im- at cited exceptions to date are rule plication, that doctrine of collateral annotation. can stranger be invoked to the judgment only against party, one who was alleged in It will recalled had in privity party, with a negli- negligent and his answer a full opportunity prior ac- *8 acci- proximate cause the gence a of issue, litigate tion to the relevant rely seeking now company is dent. The A.L.R.3d 1051-1067. In this connection finding in I upon verdict suit the this statement the court in Stucker v. Derby’s negligent and was both conduct Muscatine, County 485, 493, 249 Iowa as con- proximate cause the collision 452, 457, pertinent: is- its those clusively establishing in favor “ * * * op- prove Once a an as elements has had which had to sues This, portunity heard, day to be he has defense. had of the affirmative in said, court and the doc- cannot thereafter heard to use” of we have is “defensive important complain, especially estoppel if it can he be said had trine of the —one availability opportunity determining to be heard on decisive factors for estoppel. merits.” of collateral doctrine Derby’s against All Goolsby’sclaim In suit I except concur BECKER, J., Justices Derby’s who allegation REYNOLDSON, dissents and estate was based J., who takes part. of the no negligence was making de- The administrator
collision. opportunity and fair fense suit I full BECKER, (dissenting). effectively litigate relevant issues. those Justice against on jury’s verdict was the estate I respectfully dissent. factor, fair second a full both issues. The I. court, majority day present. recognizes is thus that one of important “most factors in determining that argument administrator’s availability of the doctrine of collateral side being wrong conduct Swan’s * * * estoppel is whether the party impact highway at the time * * * adversely affected had a full and Code, 321.304(2), The violation of section fair opportunity litigate the relevant negligent per se does and he was therefore * * issue effectively question. reach stating position its on collateral estop- study support of the decisions Our pel the majority of the Appeals Court of mutuality adherence to the rule strict New York stated in Schwartz v. Public advocating and those abandonment Bronx, Administrator of Co. of 24 N.Y.2d legal writers as the efforts of as well N.Y.S.2d 246 N.E.2d that the circumstances convince us under 729 (1969): correctly precluded the trial court “ ** * New York her Law has relitigating in now administrator from reached point where there are but to her husband’s estate claim for loss .two necessary requirements for the in- being both her decedent’s conduct vocation of the doctrine of collateral of the ac- and a estoppel. There must identity be an prior of the determination cident view issue which necessarily been decided I. adversely to estate in suit those issues prior action and is decisive of the present Applying action, and, collateral second, V. there must against have been a bar the administrator’s full and opportunity fair her estate contest the Staats for loss to husband’s decision now said to be con- trolling.” way right sue recognized no alters the immunity where no exists. contribution It seems to me that Bergan’s dis- Justice out, sent in the pointed same goes As the administrator in one case to the second requirement. cross-petition in- oppor- of her asked When and fair
division full tunity to contest the issue is demnification contribution considered the circumstances under which the Staats. issue was
tried and posture im- portant respect decisive. In this —often Although the administrator’s as position of insurance carrier as an un- signed attacking portion error position named is in who to control ruling estopping court’s her from further posture defensive of the case must be pursuing satisfaction from E. G. Staats & considered. discussion See at 39 Iowa L. company enough challenge is broad Rev. contribution, ruling court’s her claim for argued the matter was therefore *9 the party Where not fact had his deemed waived. nothing There is for re day precluded. in court he should not be respect. view in this If, here, as seems to be the case issues ruling of the trial court is therefore presented have been on behalf one of the of parties —Affirmed. the insurance carrier whose 918 defensive,1
posture wholly appearances parties this should alities and is they from necessarily impress the fact-finder preclude various not ways, defy either in the litigating position his offensive are all matters that scientific analysis, in a later case. are affected fortuitous cir- same or case Justice v. opinion variously Bergan’s dissenting Swartz cumstances and determine Bronx, 24 of Co. in the Public Administrator outcome of a contest conducted 964, 955, 967, 246 65, country.” Spettigue this v. N.Y.2d 298 N.Y.S.2d courts of 732, up 281, 557, points Mahoney, Ariz.App. 8 P.2d (1969), N.E.2d 734 445 easy solution problem rejects (1968). 562 fol- court. The throwing out of might well add that the inter-rela- One apropos: lowing quotation is tionship important. is between Goolsby neat congeries good is a illustration. is more than This case “Law employer (cross-defendant quite consistent with could not sue his logical packages em- essentially here) an on- and elected not to sue his fellow each other. It is more reaching pragmatic ployee. As the case first tried the going method of myriads of Derby fairness in approximations against had to find estate or right passenger go absolutes of uncom- human situations where force the innocent at all wrong pensated. do not exist either theoretically related only rest on ideas Derby The issues between and cross- * * * to real life situations. prob- petitioner entirely pose an different jury. effect in his case is “Judge Breitel noted this lem to the Here the between (19 protagonists, one or both of dissent in Hall N.Y. the two real [DeWitt Hall] 596, 603, 225 for the at fault.2 A verdict 2d N.Y.S.2d whom was logically the off ‘As for estate would be inconsistent supra): N.E.2d not disadvantages duplicating verdict but would setting with the former necessarily unjust not irrational. litigation, this does be either trial of issues in heavily measuring the balance weigh seems to me this case raises some II. It present rules of convenience. separate trials. problems concerning serious time long for a area subsisted this decided the issue should Here the court great of such and there is no amount this was on separately. It is true litigated ” litigation.’ duplicated is that Derby’s application. The result posture cross-petitioner’s offensive Appeals’ See the Arizona Court of also destroyed by reason of a third reasoning when it declined to allow the preclusion dichot- preclusion' estoppel: “offensive” use of collateral —claim the deci- impact this omy. The case “ * * * While this court believes that independent trial separate issues sion to system justice peer our has no this fully been considered. has not world, nevertheless, it is fallible unable usually type involve processes unerring- consider that our this do Cases case. ly in the same discover Truth. The selection of the trial of different counsel, are involved. judge jury, Usually more cases choice two or articles, availability witnesses, Impacts of Defen- the manner of Two law review presentation testimony, Assertion Collateral of their sive and Offensive L.Rev. Washington dynamics George rapport Estoppel, wit- between by Rule: fact-finder, Estoppel person- nesses and and the lawyers of eross-defendant’s the estate are 2. nature Two sets of The derivative , exposure here. whether one immaterial involved. clear wholly paid by the car set insurance rier. *10 Counterclaim, Yet, Compulsory I it think is an additional weigh- factor desirability ing speak getting against all preclusion.
and, possible, parties if all into one action. Under the circumstances shown here I authors do not consider what should would cross-petitioner allow to litigate its here, when, parties happen are against claim cross-defendant. brought together fact all but for some parties the issues or extraneous reason
properly separately. In such a case tried posture forced on one
is the defensive thus for all time as to his of- hind him position in relation to different
fensive sep- so, decision to allow ?' If in a case this one arate trial of issues like Iowa, Appellee, STATE of for conse- unsuspected and unlooked (cid:127)
quences. JENSEN, Appellant. Charles pretrial read in as fol- order No. 53999. lows : Supreme Court of Iowa. “(1) Pursuant to the motion Sept. defendant, plaintiff, not resisted hereby separate the Court orders a
later trial of issues raised
cross-petition filed the defendant
herein, and the answer of the ;cross-peti- defendant, permitted by
tion R.C.P. all
186.” right had a to assume it would litigate
be its a later claim at trial. abfe possible
The court so ordered clearest
terms. Cross-defendant consented this
arrangement. right This to later valuable away should be taken estoppel theory. any
collateral If imposed cross-de- should arrange-
fendant which consented
ment. very estoppel is basis for collateral multiple present is to save here. pled so as to allow a
trials. The case was The court a conscious
consolidation. made forego economy.
choice to this What imposing rationale for now col-
the real estoppel?
lateral I can see none. any
I goes am unaware of case that into Perhaps of con-
this matter. the accident litigation, by separate
solidated followed decision,
trials, affect the final should not