Anthes v. Anthes

• Decision Date: 11 June 1963
• Docket Number: No. 50797,50797
• Parties: Oscar A. ANTHES, Appellant, v. Fern R. ANTHES, Appellee.
• Court: Iowa Supreme Court

Page 255

122 N.W.2d 255

255 Iowa 497

Oscar A. ANTHES, Appellant, v. Fern R. ANTHES, Appellee.

No. 50797.

Supreme Court of Iowa.

June 11, 1963.

Rehearing Denied Sept. 17, 1963.

John G. Vernon, Marion, and Fisher & Pickens, Cedar Rapids, for appellant.

Lynch, Dallas, Smith & Harman, Cedar Rapids, for appellee.

SNELL, Justice.

This is a farm accident case.

Plaintiff and defendant are brothers, farmers and neighbors. They customarily help each other on an uncompensated exchange of work basis.

In the fall of 1957 near the end of defendant's corn harvest he acquired a large wire mesh corn crib for the storage of ear corn. The crib was delivered to defendant's premises in a disassembled condition. Defendant, with the help of his wife, assembled and erected the crib with the exception of the roof. His father and brother (plaintiff) helped with the roof.

Entrance to the crib was by a door about six feet high and three feet wide with slipin boards across the opening to keep the corn in place. The crib rested on a concrete floor.

A wire mesh horizontal sectional tunnel in the form of a half cylinder extended from a door a little more than half way into the crib. The tunnel sections were about two feet long and from twelve to fifteen inches high. The horizontal tunnel was to serve two purposes, first, to aid in ventilating and drying the ear corn and second, to provide space for the insertion of a sheller drag during corn shelling operations.

Cylindrical wire mesh vertical tunnel sections placed end to end from the floor upward were installed to aid in ventilating the crib and drying the ear corn.

When used for the first time in the fall of 1957 the section ends of the horizontal wire mesh tunnel were overlapped thus adding some extra strength to support the weight of the corn resting thereon. The vertical wire mesh tunnel rested on the floor of the crib, near the center and beside the horizontal tunnel.

The 1957 corn stored in the crib was later shelled out without incident.

When the crib was put in use for storage of the crop in 1958, in order to permit the horizontal tunnel to extend farther into the crib, the sections were not overlapped. The vertical sections instead of being placed on the floor were placed on top of a horizontal section and rested thereon. No other support was provided. The vertical tunnel was composed of four sections having a diameter of fourteen inches and one section with a diameter of ten inches. The small section was at the top and was held in place with binder twine. Over the top of the vertical section, which did not extend to the top of the corn when the crib was filled, the defendant placed a burlap sack and a bucket to prevent shelled and ear corn from entering the tunnel. The vertical tunnel was stabilized only with binder twine and surrounding corn.

A day or two prior to September 29, 1959 defendant arranged for the shelling of the 1958 corn stored in the crib. He engaged a sheller and arranged for necessary help, including truckers and shovelers.

Defendant told the plaintiff that he (defendant) was going to shell corn and if plaintiff didn't have anything to do 'come on over.' Defendant said that if part of the help did not show up plaintiff would be available. Plaintiff agreed. He went to defendant's farm at the suggested time.

On September 29, 1959 shelling operations began. The sheller drag to carry the corn from the crib to the sheller was inserted into the horizontal wire mesh tunnel, but it met an obstruction so that insertion to the full length of the tunnel was not possible. One of the expected shovelers did not appear. More help was needed so plaintiff helped generally. As shelling operations progressed and the corn near the door of the crib was removed plaintiff and other shovelers entered the crib, raked down the corn and shoveled it into the sheller drag. As the corn was removed exposed sections of the horizontal tunnel were removed to permit access to the sheller drag.

Extra labor, especially for the shovelers, was required because the sheller drag did not extend into the crib for its full length.

As the exposure of the horizontal tunnel progressed it became apparent to the plaintiff that the obstruction was caused by a crushing of the horizontal tunnel. Thinking that he could relieve the obstruction by lifting up on the top of the horizontal tunnel plaintiff took hold of the wire mesh and attempted to raise it slightly. As he did so the vertical tunnel and surrounding corn came down. Plaintiff was thrown to the floor and immediately suffered pain in his back.

Plaintiff claims that his back was injured by being struck by the falling top section of the vertical tunnel. Defendant controverts the sufficiency of the evidence as to the cause of plaintiff's back injury. We will discuss this question of causation in a subsequent division.

Plaintiff alleged in his petition his presence in the corn crib at the time of the shelling operation, the collapse of the ventilators and his injury. Plaintiff alleged his own freedom from contributory negligence, negligence on the part of the defendant, proximate cause, and damage. Plaintiff alleged that defendant was negligent in the construction and installation of the tunnels; in permitting plaintiff to be in an improperly erected corn crib without notice of the fault; and failure to warn the plaintiff as to the method of installation.

Plaintiff's petition contained no statement as to his status as invitee, employee or otherwise at the time of his injury.

Defendant moved to dismiss plaintiff's petition for the reason that it failed to allege any ultimate facts which would give rise to the existence of any legal duty on defendant's part to avoid negligently injuring plaintiff. The motion to dismiss was overruled. Before trial began defendant renewed his objections and objected to all of plaintiff's evidence for the reason that there was no showing of the relationship between plaintiff and defendant. By agreement of counsel and approval of the trial court this objection stood throughout the trial. It was included in a motion for directed verdict made at the close of plaintiff's testimony.

The trial court sustained defendant's motion for directed verdict on other grounds hereinafter discussed and plaintiff appeals.

Defendant urges as his first ground for affirmance error in the refusal of the trial court to sustain defendant's initial motion to dismiss. This problem should be determined first.

I. Even though not the basis of the trial court's ruling, in this appeal appellee is entitled to argue the grounds of his motion to direct or dismiss properly raised in the trial court. Mooney v. Nagel, 251 Iowa 1052, 1055, 103 N.W.2d 76 and cases cited. If any reason properly raised in the trial court was good the motion was properly sustained. Corrigan v. Younker Brothers, Inc., 252 Iowa 1169, 1172, 110 N.W.2d 246.

From the evidence it now appears, and plaintiff now argues, that he was an invitee on defendant's premises and that his rights and defendant's responsibilities should be determined accordingly.

To sustain a recovery on the theory of defendant's negligence it must appear that there existed at the time and place where the injury was incurred a duty on the part of the defendant and a corresponding right in the plaintiff for protection according to his status. LeClere v. Iowa Electric Light and Power Company, 254 Iowa ----, 119 N.W.2d 203, 207.

There can be no actionable negligence on the part of the defendant in the absence of the breach of some duty owed to plaintiff. Lagerpusch v. Lindley, 253 Iowa 1033, 1037, 115 N.W.2d 207.

Where as here a doubtful pleading is attacked by motion before issue is joined it will be resolved against the pleader. Reed v. Harvey, 253 Iowa 10, 13, 110 N.W.2d 442. If, however, the petition does allege ultimate facts upon which plaintiff might recover and states a claim under which evidence may be introduced in support thereof, or if attack is delayed, the complaint should be construed in the light most favorable to the plaintiff with doubts resolved in his favor and the allegations accepted as true. Newton v. City of Grundy Center, 246 Iowa 916, 921, 70 N.W.2d 162. When viewed from proper perspective the statements in the Reed and Newton cases are reconcilable.

Defendant's motion to dismiss was overruled on January 16, 1961. On March 23, 1961 oral depositions of the plaintiff and defendant were taken. Trial in the district court began on December 4, 1961. It is difficult to think that defendant, who was a brother of the plaintiff and who was farming with him in some operations, was subjected to any surprise as to the position of plaintiff. If there was any information defendant really needed in that particular he could have obtained the information by motion for more specific statement or by discovery deposition.

In his petition plaintiff alleged his freedom from contributory negligence. Alleging more than is necessary for recovery is not fatal to a litigant, but it is not realistic to assume that if plaintiff was basing his action on the rights of an employee he would make the unnecessary allegation that he was free from contributory negligence.

Almost any situation that could reasonably have been contemplated from a reading of the petition would have been sufficient to permit allegations of and admission of testimony to prove actionable negligence on the part of the defendant. Newton v. City of Grundy Center, supra, loc. cit. 920, of 246 Iowa, loc. cit. 164 of 70 N.W.2d says '[A] motion to dismiss is limited to the failure to state any claim on which any relief can be granted. Such motion is now almost as unnecessary as the similar obsolete pleading of demurrer. [Citations.] Other available proceedings for disposition of matters on their pleadings after answer virtually eliminate the need or use of a motion to dismiss for failure to state a claim.'

The reason for this...