128 Iowa 580 | Iowa | 1905
This is the second appeal in this case. Bor the opinion on the former appeal, see 118 Iowa, 417. The negligence complained of, stated generally,' is that the defendants permitted stone and rock to fall from their wagons upon a public street of the city of Cedar Rapids, and suffered and permitted such rock and stone to there remain, so that plaintiffs intestate, while riding a bicycle along said street, struck said rock and stone and was thrown to the pavement, and sustained injuries from which he died. The defendants joined in answer, denying specifically the allegations of the petition.
At the close of all the evidence in the case, the defendant
The main contention for error on the part of the appellant cereal company is made to rest upon the refusal of the court to instruct as requested, and upon the giving of the seventh instruction without either defining the expression “ independent contractor,” or pointing out the distinction, as related to the law of negligence, between an independent contractor on the one hand and a mere servant or employe on the other hand.
Here the defendant cereal company is a corporation. Whatever was done by it must have been done by its- agents or servants. The effect of its answer, therefore, was to deny that the persons by whom the things actually done, as complained of, were its agents or servants. That it had the right defensively to make proof addressed to that issue is not open to doubt. And in our view there can be no good reason for saying that under such circumstances the defense may not he aided —■ or, for that matter, completely established — by pointing out the fact that the workmen whose carelessness gave-rise to the charge of negligence were in truth the agents or servants of an independent third person. Proof of. such fact would operate ex necessitate to completely negative the allegations of the petition. As supporting this conclusion, see the following cases: Babbage v. Church, 54 Iowa, 172;
Counsel for plaintiff seems to think that the case comes within the provisions of Code, section 3629, which are that “ any defense . . . showing matter of justification, excuse, discharge or release, and any defense which admits the facts of the adverse pleading, but by some other matter seeks to avoid their legal effect, must be specially pleaded.” But here no matter of justification, etc., is relied upon, nor is any fact alleged in the petition admitted. On the contrary, every fact pleaded is met by a specific and positive denial. It becomes manifest, therefore, that the Code provision can have no application. The cases cited and relied upon by counsel for plaintiff do not sustain the position taken by them. In Dyson v. Ream, 9 Iowa, 51, which was an action for trespass, the defendant admitted his entry on the property, and his adverse possession. It was held substantially — and this, in conformity with the statute —■ that he could not justify by making proof of ownership in himself without special, pleading. The cases of Patterson v. Clark, 20 Iowa, 429; Scott v. Morse, supra, and Morning v. Long, 109 Iowa, 288, do not differ in the principle involved from the Dyson Case. The cases of Brown v. McLeish, 71 Iowa, 381, and Eller v. Loomis, 106 Iowa, 381, are not in point.
Now, essential to a determination of the question of liability on the part of the cereal company was an answer to the primary question as to the relationship existing between that company and Connor & Co. Inherently, therefore, the latter question became a part of the law of the case. It is-well settled in this State that, independent of any requests made, the law of the case must be given to the jury, and a failure to do so will be reversible error. Owen v. Owen, 22 Iowa, 270; Upton v. Paxton, 72 Iowa, 299; Seekel v. Norman, supra.
In our opinion filed upon the former submission of this case, we had occasion to point out upon what conditions the' legal relationship of independent contractor, as related to the law of negligence, are made to rest, and we need not further enlarge thereon. Tt is sufficient to say that, for the failure of the court to instruct upon the subject otherwise than by the abstract statement found in the seventh instruction, a new trial must be awarded to the appellant company.
Accordingly the appeal of plaintiff as against Connor &. Co. is dismissed, the judgment in favor of plaintiff against the cereal company is reversed, and the cause remanded for a new trial.
Dismissed on plaintiff’s appeal. Reversed on defendant’s appeal.