*1 HUBBARD, Appellant, Harold Iowa, Appellee. STATE of No. 53089. Supreme Court of Iowa. 14, 1969. Jan. Smith, Harry City, H. appel- for Sioux
lant. Gen., Turner, Atty. Richard R. C. James
Martin, Gen., Atty. Asst. Edward F. Sa-
more, Atty., Woodbury County appellee.
STUART, Justice. companion
This case to State Iowa,
Whitehead, filed N.W.2d
January pleaded guilty
Defendant to the charge breaking entering and was sentenced years than not more the men’s re-
formatory Immediately at Anamosa. after
sentence, defendant filed a motion to with- plea guilty,
draw the which was denied appealed hearing.
after Defendant claim-
ing plea guilty had been induced promises leniency
false was there-
fore void. represented counsel both Weitzel
Same appeals argued Whitehead.
together. There material variance is no
between the in the cases. The records two
issues are identical. and law decisive Facts
in this case are set forth State v. White-
head, supra. pur- It would serve no useful
pose repeat them here.
Therefore, stated reasons Whitehead, this case is affirmed.
Affirmed. concur, BECKER, except
All Justices
J., dissents. who
9Q5 *2 MASON, Justice. 25A,
This is chapter an action under Code, 1966, Act, Claims Tort Acts of Sixty-first Assembly, against General diagnos- State recover for ing plaintiff’s being herd of cattle as infect- when, fact, they anaplasmosis ed with were not so infected.
Defendant’s motion to dismiss was sus- ground tained on ju- trial court lacked subject risdiction of the matter of ac- tion under Act. appeal- this Plaintiff has ed.
During plaintiff the fall of 1963 a owned herd of 226 cattle farm Clarke County. Shortly before 14 state October samples veterinarian sent blood from 12 of the herd Veterinary Diagnos- to the State Laboratory, University tic in Ames. laboratory reported samples .as show- positive ing a indicating highly reaction contagious and infectious as disease known anaplasmosis.
In accordance with law and rules regulations depart- the agriculture ment that all reactor be cattle isolated cattle, 50 feet least from quarantined veterinarian the entire herd being anaplasmosis. Copy infected regulations promulgated by the argicul- department provid- ture plaintiff furnished following quarantine ed would be released consequent negative two tests on entire days apart. herd 60 October, January During .and December lab- veterinarian continued to send the oratory samples blood from various animals Reports samples of the herd. from the animal were in that same inconsistent reported positive sample being be would date, sample on one whereas from the reported negative animal same would a few weeks later. Des Jesse, Johnston, & LeTourneau Moines, appellant. for early January plaintiff Gen., Turner, Atty. R. Don sample Richard veterinarian from 42 head C. sent ,as Gen., Bennett, Atty. David S. Special reported Asst. positive disease Gen., appellee. Sather, Atty. Laboratory sample Diagnostic Asst. and one Laboratory, dispose Diamond of them at than fair market animals to less these same Laboratory re- Diagnostic value. Moines. Des samples posi- the 42 ported only 8 of Defendant dismiss asserted motion to running
tive, Laboratory, Diamond while plaintiff’s petition alleged of action a cause animals samples the same on blood tests its over which State had not waived possible day, taken the same showed *3 immunity governmental common law to reactors. suit; therefore, jurisdic- the lacked court proof subject in- of the tion of matter. confronted When by Diagnostic run consistent results of tests only assignment plaintiff I. In his' as- Laboratory, department’s agriculture the the trial in sustaining serts court erred de- Industry immediately Division of Animal to fendant’s motion dismiss based quarantine plaintiff’s herd. lifted of jurisdiction subject lack of of matter. 30, 1967, damages after claim for June 30, 1965, Prior to March the effective by comptroller filed with state was denied (herein date of the Iowa Act Tort Claims board, appeal plaintiff the instituted suit Act), jurisdic- called the our courts lacked State, against alleging the veterinarians against tion brought over suits the State employees agents involved were or the of agencies sounding and its tort. In agriculture department acting be- on its Co., Hargrave Montandon v. Construction scope authority. half in the of their we N.W.2d held governmental immunity doctrine of tort to alleged Plaintiff defendant was jurisdictional actions affirmed the or following: all of the sustaining special lower court’s order employ recognized to “(a) It failed by appearance agency. filed defendant State appropriate tests determine whether to parties’ present contentions here plaintiff’s anaplasmosis. cattle herd had plaintiff’s petition issue whether asserts specifically coverage claim excluded from diagnos- It “(b) failed to use the skill of by “misrepresentation” under the medicine, specialist veterinary tic such clause of section 25A.14. be, professed special to skill plaintiff’s cattle would have discovered support trial ruling court’s defend- anaplasmosis. herd did not have argues governmental ant the Act waives “(c) carry It failed out its tests immunity sounding to claims in tort recognized ap- accordance with provided to claims defined and to the extent propriate procedures whether to determine 25A; chapter exclusions in section25A. plaintiff’s anaplasmosis. cattle herd had applicable subject are matter of plaintiff’s petition. “(d) It failed discrepan- to discover the by cies in it although the tests conducted provides part: pertinent This section they by were reasonably discoverable dili- examination; gent make failing and in provisions chapter “The shall not of this frequent sufficiently in that examinations apply to: regard. “(e) failed to condemn said animals “1 [*] [*] [*] pursuant 1966 Code of Iowa.” provisions Chapter “2 [*] [*] [*] alleged
Plaintiff
further
a direct and
Any
by
“3.
damages
claim for
caused
proximate
result of
imposition
defendant’s
quaran-
or
establishment of
herd,
state,
his cattle
tine
quaran-
livestock and farm
such
whether
tine
persons
rendered
valuable
property.
less
and he was forced
relates to
or
***
immunity
its
governmental
is waived under
arising out
Any claim
“4.
”
* *
deceit,
provisions.
misrepresentation, [or]
a claim
25A.2(5) defines
Section
patterned
some extent
Act is
after
To
our
Act:
purpose of
the federal Tort
Act and
Claims
contains
exclusions,
many
including
the same
“
against
claim
means
‘Claim’
“quarantine” exception in 28 U.S.C.A. §
only, on account
money
state
Iowa
“misrepresentation”
2680(f)
excep-
account
or on
property
damage
or loss of
2680(h).
tion in 28 U.S.C.A. §
death,
injury
caused
personal
or
wrongful act or omission
negligent or
“misrepresentation” exception
acting with-
while
any employeeof
federal statute
has been construed
employment
scope
office
in the
of his
Appeals contrary
Tenth
Circuit Court of
»
plaintiff’s
here in Hall v.
contention
*4
(1959), 274
deci-
States
F.2d 69. The Hall
Act excludes
the
The
contends
subsequently
strongly
sion was
cited and
of mis-
arising out
coverage a claim
from
Supreme
on
United
relied
the
States
any claim
decit and also
representation or
(1961),
in
Court United
v. Neustadt
States
or estab-
by imposition
damages caused
for
U.S.
S.Ct.
9Q9 however, policy. Ordinarily, public means ‘deceit,’and, “deceit” tion’ ‘[a]s adopting are “misrepresen- courts of statute misrepresentation, fraudulent placed by in- not there- bound construction meant been must have tation” adopted had it. since on other states which misrepresentation, negligent clude “misrepresentation” the word otherwise supporting the For our decisions above page F.2d duplicative.’ 207 would part principles in whole see: Woods an interpretation, Following this Unemployment * * Bros. Const. Co. v. Iowa author- line, [citing unbroken Commission, 1171, Compensation 229 Iowa ities]. 348; 1175-1178, 345, Stromberg 296 N.W. decisions, the line “Throughout this Comm., Hatchery Emp. 239 v. Iowa Sec. plaintiffs, and has been made argument 1047, 498, 1050-1051,33 N.W.2d 500- Iowa courts, until by rejected consistently 1328, 501; McMillen, 244 Logan v. Iowa 2680(h) does case, that the bar of this § Yerkes, 504; 1339, 498, Best v. 60 N.W.2d lies the claim gist of apply when the 30, 23, 60 247 Iowa 77 N.W.2d inaccurate underlying negligence Erbe, 1354; A.L.R.2d Lever Brothers Co. e., claim i, representation, when the 475; 454, 462, 249 Iowa 87 N.W.2d ‘arising out of’ phrased as one 1128, 1135, Klug, In re Estate this But ‘misrepresentation.’ rather than 600, 604-605; In re Estate 104 N.W.2d forcefully demonstrated argument, Millard, 105 N.W. Iowa Hall v. United by the Tenth Circuit 95, 101; City 2d Blackford v. Sioux an than States, supra, nothing more Pork, Inc., 254 854- Dressed Iowa denying 2680(h) attempt circumvent § 559, 565; Es re N.W.2d misrepresen- applies Tedford, 895, 140 tate Iowa tation.” 908, 911. Stat N.W.2d See also C.J.S. Statutes, Am.Jur., utes 371-373 and 50 §§ appeal presented by this III. The issue section 323. this argued to' previously has not been court. *6 legislature is the intent our of and final and controls construction interpreta and Although decisions interpretation statutory of Iowa law is for illustrative be courts of federal
tions adopt and this court we should reason in con courts to state and instructive ing consider of those cases we the sounder. en patterned after those struing statutes Pork, City Blackford v. Dressed great entitled Sioux to by Congress acted determining Inc., construction to supra. weight subsequently en phrase in
given the same spirit policy Speaking IV. of statutes, are neither con they acted state chapter 25A especially motivating where enactment of we compulsory, clusive nor substantially appears that earlier statutes Worthington, said Graham v. enacted been
similar have also 860-861, 146 636-637: N.W.2d states. chapter general purpose
“The of 25A impose people this upon all the has been bor to language Where burden, expense and costs which state state of a sister the statutes rowed from damage property or construing arise from tortious to light go for we would officers, injuries agents persons decisions, any, that state. Subse if government. employees state having ear our jurisdictions quent decisions promoting the This a valid means of would be legislation adopted similar lier general welfare state. This is respect and deference entitled unusual sound, purpose. public [Citing if usually authorities]. be followed and will reasonable and in harmony with justice (( [*] ij< only Laws, can conclude the
“We General As- sections (Supp.1960); 245A-1 to -17 sembly advantage ultimate Act, saw no New York Court Claims sections by continuing state un- to cast some 8-a (1953); Annotated, Vermont Statutes fortunate individuals the full burden of Title (Supp.1963); section 5601 Wash- damage Rev.Code, done tortious conduct of ington section (1962). 4.92.090 officers, agents employees. state or 1, 1966, July Effective the Utah Govern- Sixty-first “In fact we assume the must Immunity Act, mental chapter S.L.U. problem Assembly recognized the General 1965, provides in section 63-30-10 sub- posed general concern and as one of here section as an (4) injury an exclusion which elected effect a solution.” “arises out of a failure to make an in- spection, byor reason making an inade- government sovereign V. In state im- quate inspection any prop- munity remains the rule rather than the ” erty, states, exception. large majority A of the subdivisions, political their most of Alaska, Vermont, Hawaii and have Tort any liability. still are immune to tort See exceptions Claims Acts with similar to Report Legislative Coun- Research those found federal Tort Claims Act cil, 21, 1967, August page Feasi- statutes, 2680(h). section See Alaska bility Modifying Abolishing or Doc- Procedure, Code of Civil sections 09.50.250 Immunity trine Da- Sovereign South 1958; Rev.Laws, (3) Hawaii section 245A- kota. 1960; 15(d) Annotated, Vermont Statutes Title However, section 5602(6) 1963. legislation the basis of drafted in On we have not been cited decisions of immunity modifying sovereign other states jurisdictions those interpreting the exclu- general approaches five seem have de- sionary clause independent nor has our re- veloped. we are concerned Here any. search revealed statutory approach legis- used our Alstyne, lature. Decline See Van We do not California, find that Con- Immunity, of Governmental State Govern- necticut, Illinois, Minnesota, York, New ment, Winter, 1966,page 32. Carolina, North Washington or other states waiving portion of their immunity tort “A few states have followed federal have the exclusionary provision found at example legislation and have enacted section 2680(h) of the federal Act inor expressly allows for tort actions to be the state statutes which model their acts brought against and its subdi after the federal Act. they Nor do afford visions. states have established Several any guideline to aid in interpreting sec- legislative and administrative methods for *7 tion 25A.14(4) of the Iowa Act. settling jurisdictions tort claims. Some liability have also found tort where insur Under these circumstances we have by ance has been statute and authorized no apply occasion to principle the men unit; purchased by governmental the tioned in paragraph second the of Division usually these situations there is a waiver III, supra. So to determine the intent immunity the to the amount of insurance legislature our in enacting section 25A.- Comment, coverage.” Torts — Governmen 14(4), we must turn principle that Immunity, tal (Fall, 1964), 50 Iowa L.Rev. where, here, a state legislature adopts 226, 228. a federal statute which had previously been Listed in footnotes this comment as interpreted by federal courts it be states that legislation had then enacted ex- presumed it knew legislative the history pressly allowing brought be tort actions to of the law and the interpretation placed Annotated, are Comp.Laws Alaska sections provision on the by decisions, such federal 56-7-1 to (Supp.1958); -10 Hawaii Rev. had the objective same in mind and em-
9U for his claim and redress same amination of his statutory terms ployed Erbe, that injuries, prior to time v. Co. Brothers Lever See sense. him denied to because of the Government’s 462, at 87 N.W.2d at supra, 249 Iowa hand, immunity from suit. the other Tedford, On supra, 258 475; re Estate of In for the provide it a forum ci- was intended to 911, and at 895, 140 N.W.2d at Iowa against the determination claims Gov- Statutes opinions; 82 in these tations C.J.S. be Statutes, ernment which could theretofore section Am.Jur., 371; and 50 § by private Congress. considered Act of 323. * * * By looking exceptions at noted, Neustadt, previously Hall and find, 2680, we enumerated in 28 U.S.C. § by approval cited with were decided and however, that not intend did Government March before jurisdictions other federal immunity in all instances. to waive States v. United 30, Hungerford See 1965. << 102; n 99, nn ‡ Cir., F.2d Steinmasel 1962),307 (9 SD, 202 1962), (D S.D. v. United States “ * * * out in instances set [T]he 335, 338; United and Smith v. F.Supp. Congress 2680 instances which Section are 402, F.Supp. Wyo., 1963), 224 (D States be made concluded should no event fre been cited have decisions 405. Both applicable under the Federal Tort Claims adop since by jurisdictions quently federal Act.” v. United Act. tion of Iowa Jones Cir., 563, cert. 1953), F.2d (2 207 States seeking legislature In intent of our here 518, L.Ed. 921, 98 74 S.Ct. denied 347 U.S. except assump- we have no guidepost 940, 74 347 rehearing denied U.S. Congress tion what just that intended decision another L.Ed. 98 S.Ct. by language intended the same as inter- by in United States relied Court preted by federal courts. Neustadt, with supra, has been cited v. quote We from United States further and since approval times before several 706-707, Neustadt, supra, v. U.S. at 366 March 1965. 1300-1301, at 621: 81 6 L.Ed.2d S.Ct. pri- designed Claims Act was “The Tort immunity did, sovereign say, marily as the Fourth Circuit remove “To and, ‘negligence,’ in tort rather from suits claim arises out of United States exceptions, specific ‘misrepresentation,’ to render than the loss suf- when with certain private by injured party as a liable in tort fered is caused the Government duty’ circum- ‘specific under would be like breach of owed individual him, e., duty supplied). Richards i. use (Emphasis Government to stances” States, obtaining communicating care in U.S. S.Ct. due United party may upon which that information L.Ed.2d rely reasonably expected con- Del., (D 1963), States Small affairs, only to duct of his economic 659, 661-663, policy mo- F.Supp. commonly under- state the traditional and federal enactment of tivating ‘neg- legal stood definition of the tort of expressed consonance clearly, ligent misrepresentation,’ if supra, in this Worthington, Graham conclusively, the authorities shown language: *8 margin, set in there is forth and which every Congress had in reason to believe the Federal Tort Claims purpose “The of ‘misrep- the word placed mind it least, when in was, two-fold character. Act at ‘deceit’ in resentation’ before word hand, recognition that § was, 2680(h). As the Second Circuit observed person or injured property in his person States, supra, ‘deceit’ agent United an or of negligence tort Jones had Con- was, alone would been sufficient under have employee the Government only deliberately gress except intended circumstances, legal ex- entitled to certain 912 Certainly representations. is support
false there detriment. see Smith v. United States, assuming Congress supra, was (D F.Supp. no warrant for 224 Wyo.1963), definitions unaware of established tort 405. when it the Tort Claims Act enacted petition having Plaintiff’s failed 1946, twenty-eight spending after ‘some cause of action which re years and re- congressional drafting covery had, be its dismissal drafting, amendment and counteramend- ” trial is court
ment.’ Affirmed. The authorities cited in the footnote are: The Re- American Law Institute’s 22,
statement “Deceit: (1938), of Torts c. justices concur, except All LeGRAND 3, Transactions”, Topic “Negli- Business BECKER, JJ., who dissent. 552; gent Misrepresentation”, section Prosser, 16, “Misrep- (1941 ed.), Torts c. LeGRAND, (dissenting). Justice resentation”, 87, Respons- section “Basis Ed., ibility” Prosser, Torts, (Now Third I dissent. I am somewhat loath to sodo Bohlen, ; chapter 102) section the authority support because cited in Deceit, Misrepresentation Negligence, majority opinion is formidable. How- or Warranty, 735-739 42 Harv.L.Rev. ever, this is our first encounter with this Deceit, (1929); Am.Jur., Fraud and problem, and it important I believe Representations” “Negligent section protest against step that first down what Am.Jur.2d, (1939) (Now 37 Fraud I wrong consider to be road. Deceit, 208 and 209). sections brought Plaintiff this action under Act, Under the is liable as Iowa Tort under Claims Act the terms of individual in the manner and to which the State waived governmental its Although extent it has which consented. immunity as to certain torts caused liberality construction, rule of “the employee of the state exceptions, applies favor of the acting scope while within the of his em- exceptions [Citing are not to cases] [t]he ployment. excepts The Act certain claims judicial through interpretation, nullified operation. from its exception such One clearly since Congress delineated the areas any claim arising misrepresentation, out of not its which did intend to forfeit which has been construed under the federal immunity suit [Citing authorities] Tort Claims Act (after ours * * Corporation Builders of America patterned) to negligent misrepresen- include (9 Cir., v. United 320 F.2d 1963), States tation as well as that which is fraudulent. 426, certiorari denied 376 U.S. 84 S.Ct. 11 L.Ed.2d The same majority says claim, The this is such a interpreting restraint govern must us in way. but I cannot see it simply This is section 25A.14(4). malpractice against claim a veterinarian employed by state, who do Hunger We anything believe performance professional States, ford supra, F.2d at duties. Airlines, or Ingham Inc. Eastern Cir., 238-239, (2 1967), F.2d con does not define claims which flicts with the conclusion we reach. arise out misrepresentation. We must
therefore look general principles legislature has not made action established law to discover what is excluded resulting able a against claim under the exception the State heretofore If noted. representations from statements or which this Act, were not a claim under the Tort *9 persons allegedly induce act to their no one would assert to it was one based on
913 charge malpractice against in the is abundant There misrepresentation. physican. those authority, in our decisions both peti- plaintiff’s jurisdictions, other I take it there doubt that a vet- is no misrepresen- bottomed, not on is
tion here
duty
specialty is the same
erinarian’s
in his
nothing
tation,
There is
negligence.
but on
lawyer
dentist, physician,
as that
a
this.
changes
in the
265,
Altig,
in his. Morrison v.
157 Iowa
services are worthless without from the communication results ultimate Lyle ORCUTT, Appellee, E. expert employed the one who him. Usu- v. ally only engaging purpose that is the HANSON, Appellant. Leo place. expert in the first To draw No. 53042. responsible line on side of he is one which performing investi- Supreme Court of Iowa. gative on diagnostic duties while is liable what he because he told Jan. 1969. casuistry. than nothing he did less See 236, 239, Shepard,
Glanzer
N.Y.
I can find nothing our Claims Tort
Act justifies creation of a new unrecognized
heretofore classification of
what negligent misrepresenta- constitutes
tion. I find that repugnant to be purpose expressed
avowed the Act Worthington, Graham v. 146N.W.2d If an action such now before us was held
one arising out of the negligence of the
wrongdoer, reports including his erroneous his findings, before the Tort Claims passed, it is still such an action. majority entirely relies almost cases,
two States, federal Hall v. United
(10 Cir.), 274 F.2d and United States Neustadt, 366 U.S. 81 S.Ct.
thing majority of them. How claims
ever, majority are not concedes we Where, here,
bound such decisions. and their premise patently
their false totally indefensible, we should
result they were simply because
follow them Hunger
there Later such as first. cases Ingham East
ford v. United States Airlines, Inc., majority
ern both cited
opinion, which distinctions more make emphasize the
fanciful than real serve inevitably
confusion which will result
espousal of the federal rule. unnecessary
Perhaps it is to add I would
reverse.
BECKER, J., joins in this dissent.