Freese v. Lemmon ( 1973 )

REES, Justice.

This appeal involves two separate cases; cause number 55498 is an action by Lena Freese to recover damages for personal injuries, and cause number 55499 is an action by John R. Freese, the husband of Lena Freese, to recover damages for loss of his wife’s society, comfort and companionship.

Each petition contained three divisions; divisions I and II are claims against Norman F. Lemmon and Kay Ellann Lemmon, based on specific negligence and res ipsa loquitur; division III in each case is a claim against Dr. Merwin R. Dieckmann based on specific negligence, such division having been added by amendment.

The Lemmons were the owners of an automobile which was being operated by defendant Norman F. Lemmon on September 21, 1969, and which defendant Norman Lemmon drove into and against plaintiff Lena Freese, causing her to sustain substantial injuries. The claims of respective plaintiffs against defendants Lemmon are not involved in this appeal.

The petitions in both cases allege that on September 21, 1969 defendant Norman Lemmon drove an automobile, owned by him and his wife, off of the paved portion of Rainbow Drive near the entrance to the Hippodrome of the Dairy Cattle Congress in Waterloo, striking the plaintiff Lena Freese, and pinning her against an automobile parked nearby, causing injuries to her left leg and knee, fracturing her pelvis, and causing injuries to her lower abdomen and thigh. In her petition she specified the negligence of defendant Norman Lemmon in several respects which we need not consider here, as the Lemmons are not involved in this appeal.

The petition of plaintiff John R. Freese was couched in substantially the same language, and alleged the same specifications of negligence as did the petition of plaintiff Lena Freese. In one of the specifications of negligence which was asserted by plaintiffs in amendments to their respective petitions, they alleged that at the time of the injuries sustained by Lena Freese, defendant Norman F. Lemmon was suffering from a seizure, becoming unconscious and unable to control the automobile which he was then operating. That said defendant had previously suffered from a seizure and knew, or in the exercise of ordinary care ought to have known, that because of such condition it was dangerous for him to drive an automobile, and that by reason thereof he was negligent in undertaking the operation of an automobile at the time and in the manner complained of in the petitions of the plaintiffs.

Defendant Merwin R. Dieckmann was named as an additional defendant in a second amendment to the respective petitions. In such amendments, plaintiffs asserted that at all times material, defendant Dieck-mann was a physician licensed to practice medicine in the State of Iowa, and was practicing at Waterloo; alleged all of the circumstances of the happening of the accident, including the allegation that at the time of plaintiff’s injuries defendant Norman Lemmon was suffering from a seizure, becoming unconscious and unable to control the automobile he was then operating. That said defendant had previously suffered from a seizure less than three months prior to plaintiff’s injuries and had consulted defendant Dieckmann to diagnose and treat his condition and to advise him in respect thereto. They alleged defendant Dieckmann undertook in his professional capacity as a medical doctor to diagnose and treat the aforesaid condition of Norman Lemmon, and to advise him with respect thereto, and that defendant Dieckmann was negligent in:

(1) failing to diagnose and ascertain the cause of the first seizure of defendant Norman Lemmon, and to learn of its reoc-currence ;

(2) negligently failing to advise defendant Norman Lemmon not to drive an automobile ;

(3) negligently failing to warn defendant Norman Lemmon of the dangers involved in driving an automobile in view of all of the facts and circumstances;

(4) negligently failing to employ recognized and appropriate tests for diagnosis of the cause of defendant Norman Lem-mon’s first seizure;

(5) negligently failing to take a spinal tap of defendant Norman Lemmon;

(6) negligently advising defendant Norman Lemmon that he could drive an automobile ; and

(7) negligently failing to consult a specialist to whom the patient had been referred prior to advising the defendant Norman Lemmon that he could drive an automobile.

Plaintiffs further alleged that the conduct of defendant Dieckmann in all of the foregoing particulars, was willful and wanton, and prayed for exemplary damages, in addition to actual damages.

In each of the cases, defendant Dieck-mann filed his motion to dismiss the petition of plaintiff against him for the reason that the same failed to state a claim upon which any relief could be granted, and asserted the petitions failed to allege the violation of any duty owed by defendant Dieckmann to the plaintiff Lena Freese (or derivatively, the plaintiff John R. Freese), for that:

(a) the duty to properly diagnose and treat the condition allegedly suffered by Norman F. Lemmon is a duty owed to Norman F. Lemmon only;

(b) any negligence predicated upon the allegation that defendant Dieckmann advised Norman Lemmon to operate an automobile or that he failed to advise Norman F. Lemmon not to drive an automobile, must be based upon knowledge. That there are no operative facts alleged in plaintiffs’ petitions to the effect that defendant Dieckmann knew the physical condition of Norman Lemmon would be dangerous to the general public or the plaintiff Lena Freese in particular; and

(c) the plaintiffs in their petitions affirmatively state that defendant Dieckmann was not aware of any condition of Norman F. Lemmon which would preclude his being able to drive an automobile, and plaintiffs are bound by such allegations.

Trial court sustained the motions to dismiss filed in each of the plaintiffs cases. In its ruling trial court found that actual knowledge of the condition of Norman Lemmon by Dr. Dieckmann is not alleged by the plaintiffs in their petitions. Trial court, in its ruling, placed reliance on the case of Ryan v. Kanne, 170 N.W.2d 395 (Iowa 1969), a case involving an accountant. The court also found that in the matters before us here there was no element of conscious reliance by plaintiff Lena Freese upon the diagnosis and treatment of Lemmon by Dr. Dieckmann, or that there was anything in the pleading to indicate that Mrs. Freese was known to Dr. Dieck-mann. In conformity with a motion by plaintiffs to enlarge the findings, the court further found plaintiffs’ petitions alleged actual knowledge by defendant Dieckmann of the first seizure suffered by defendant Norman Lemmon, but found that such allegation was not sufficient and that plaintiffs’ petitions failed to allege that defendant Dieckmann had actual knowledge of the condition of Lemmon which caused or led to the first seizure.

From such rulings sustaining the motions to dismiss in the respective cases, plaintiffs appeal. They assert only one error upon which they rely for reversal, namely: that trial court erred in sustaining defendant Merwin R. Dieckmann’s motions to dismiss, and in dismissing plaintiffs’ petitions against Dieckmann. The error so assigned is buttressed by several brief points.

I. Rule 104, Rules of Civil Procedure, provides that every defense in law or fact to any pleading must be asserted in the pleading responsive thereto if one is required, or if none is required, then at the trial except that (b) failure to state a claim on which any relief can be granted may be raised by motion to dismiss such claim, filed before answer, and (d) such motions must specify wherein the pleading they attack is claimed to be insufficient.

We must, therefore, examine the petitions of the plaintiffs to determine whether it appears to a certainty plaintiffs have failed to stated claim on which any relief may be granted under any state of facts which could be proved in support of the claims asserted by them. See Osbekoff v. Mallory, 188 N.W.2d 294, 299 (Iowa 1971); Wheeler v. Waller, 197 N.W.2d 585, 586 (Iowa 1972).

In its ruling on the motions to dismiss of defendant Dieckmann, and particularly and specifically, in the ruling on the motion for enlargement of findings, trial court found plaintiffs’ petitions alleged actual notice by defendant Dieckmann of the first seizure suffered by defendant Norman Lemmon, but further found plaintiffs’ petitions failed to allege defendant Dieckmann had actual knowledge of the condition of his patient which caused or led to the first seizure.

It occurs to us that the specifications of negligence asserted by plaintiffs in their respective petitions, adequately serve to charge defendant Dieckmann with negligence in failing to employ recognized procedures to determine the cause of Lem-mon’s first seizure, and that such allegation, coupled with the allegations that Dieckmann:

(a) negligently failed to advise defendant Norman Lemmon not to drive an automobile ;

(b) negligently failed to warn defendant Norman Lemmon of the dangers involved in driving an automobile in view of all the facts and circumstances; and

(c) defendant Dieckmann negligently advised the defendant Norman F. Lemmon that he could drive an automobile;

are so specific that it cannot be said that to a certainty it is made to appear plaintiffs have failed to state a claim on which any relief may be granted under any state of facts which could be proved in support of the claims asserted by them.

The motions to dismiss of defendant Dieckmann filed in the respective cases, we feel, invade the area of substantive law and are not properly directed to the basic proposition that the petitions of the plaintiffs fail to state a cause of action or claim on which any relief could be granted, provided of course a state of facts might be established by plaintiffs in support of their asserted claims. A long line of Iowa cases have enunciated the rule. See Newton v. City of Grundy Center, 246 Iowa 916, 920, 70 N.W.2d 162, 164; Ke-Wash Co. v. Stauffer Chemical Co., 177 N.W.2d 5, 9 (Iowa 1970); Lagerpusch v. Lindley, 253 Iowa 1033, 1036, 115 N.W.2d 207, 209; Nelson v. Wolfgram, 173 N.W.2d 571, 573 (Iowa 1970); Osbekoff v. Mallory, supra; Wheeler v. Waller, supra; Halvorson v. City of Decorah, 258 Iowa 314, 319, 138 N.W.2d 856, 860.

The case of Ryan v. Kanne, supra, which was referred to by trial court in its rulings on defendant’s motions to dismiss may be referrable to the substantive propositions urged by defendant Dieckmann in his motions to dismiss, but is not relatable to the basic proposition as to whether or not the motion to dismiss in these cases should have been sustained on the basis that plaintiffs’ petitions failed to state a cause of action against Dieckmann.

We conclude trial court erred in its ruling sustaining the motions of defendant Dieckmann to dismiss petitions of plaintiffs as to him. We are unable to adopt the reasoning of the trial court and to say that the petitions of plaintiffs as a certainty failed to state claims on which any relief might be granted under any state of facts which could be proved in support of the claims asserted by them.

II. We deem it unnecessary to consider the other propositions urged by appellants as our conclusions in division I, supra, necessitate a reversal of trial court.

Trial court erred in sustaining defendant Dieckmann’s motions to dismiss plaintiffs’ petitions as to him. This case is, therefore, reversed and remanded.

Reversed and remanded.

UHLENHOPP, REYNOLDSON, HARRIS and McCORMICK, JJ., concur.

UHLENHOPP, J., concurs specially joined by REYNOLDSON, HARRIS and McCORMICK, JJ.

LeGRAND, J., dissents joined by MOORE, C. J., and MASON and RAWL-INGS, JJ.