Bindel v. Iowa Mfg. Co. of Cedar Rapids
Decision Date | 11 May 1972 |
Docket Number | No. 54924,54924 |
Citation | 197 N.W.2d 552 |
Parties | James A. BINDEL, a minor, by George Bindel, his Natural Father and next friend, Appellant, v. IOWA MANUFACTURING COMPANY OF CEDAR RAPIDS, Iowa, Appellee. |
Court | Iowa Supreme Court |
James E. Van Werden, Adel, and Martin E. Spellman, Perry, for appellant.
D. M. Elderkin, Cedar Rapids, for appellee.
This is an appeal from the trial court's order sustaining defendant's motion to dismiss plaintiff's three-division petition seeking personal injury damages. We reverse and remand.
The record before us consists of a copy of plaintiff's petition, defendant's motion to dismiss asserting plaintiff failed to state any claim upon which any relief could be granted and the lower court's ruling sustaining defendant's motion in toto.
After the lower court's ruling plaintiff did not plead over within the time permitted by rule 86, Rules of Civil Procedure, from which it follows plaintiff elected to stand on the record. The order thus became a final adjudication. Gradischnig v. Polk County, Iowa, 164 N.W.2d 104, 105; Hosfelt v. Lacey, Iowa, 160 N.W.2d 519, 520.
I. Before considering this matter on the merits we first consider defendant's motion to dismiss plaintiff's appeal. It was filed two days before plaintiff filed the printed record. A few days after the typewritten abstract of record was filed by plaintiff as required by rule 340(a), R.C.P., he commenced another action alleging substantially the same cause of action. He dismissed it without prejudice approximately thirty days later.
Defendant's motion, which we ordered submitted herewith, asserts plaintiff waived and abandoned his appeal. We do not agree. Defendant cites and relies on cases where a new action was instituted before appeal from the first was commenced. They are factually distinguishable from the case at bar.
In considering a claimed waiver and abandonment of an appeal in Vermeer v. Sneller, Iowa, 190 N.W.2d 389, 395, we say:
In response to defense counsel's inquiry, plaintiff's counsel states in the reply brief the second action was commenced. 'In order to expedite the taking of depositions and to save expense.' This and the fact plaintiff before and after starting the second action actively pursued the appeal negates a known and intentional waiver and abandonment of his appeal. Defendant's motion to dismiss this appeal is denied. We believe State v. Olson, 259 Iowa 756, 145 N.W.2d 645, supports this conclusion.
II. Repeating at length all allegations contained in plaintiff's petition and the motion to dismiss would unduly extend this opinion.
In brief, plaintiff in division I alleges that on March 3, 1969, as an employee of Gendler Stone Products Company, he was cleaning accumulated stone products from the bin of a 'Cedarapids' rock crushing machine, manufactured by defendant, Iowa Manufacturing Company, and was caught by a shaft which protruded nine inches causing him to be thrown, twisted and severely injured. In paragraph 6 plaintiff alleges:
'That the Defendant, Iowa Manufacturing Company, was negligent in each and all of the following grounds and particulars:
'a. In improperly designing the 'Cedarapids' machine referred to herein, so as to make it unsafe for persons such as this Plaintiff to work around and about said machine, under the conditions and circumstances then and there existing.
Plaintiff further alleges proximate cause, damages and prays for judgment against said defendant for $960,000.
Divisions II, IV and VI asserted claims against another defendant not involved in this appeal.
Division III by reference incorporates all paragraphs in division I except paragraph 5 which directly alleges the machine was manufactured by defendant, Iowa Manufacturing Company. Plaintiff further alleges defendant 'did represent and warrant said 'Cedarapids' machine to be a safe, suitable and fit for the use and purpose for which it was being used at the time the Plaintiff was injured.' Division III alleges breach of expressed and implied warranty.
Division V by reference incorporates all of division I and includes the allegation, 'Defendant, Iowa Manufacturing...
To continue reading
Request your trial-
Tigges v. City of Ames, 83-469
...fails to plead further, it is deemed to have elected to stand on the pleadings and the order becomes final. Bindel v. Iowa Manufacturing Co., 197 N.W.2d 552, 553 (Iowa 1972); 1967 Senior Class v. Tharp, 261 Iowa 539, 541, 154 N.W.2d 874, 876 (1967); Winneshiek Mutual Insurance Association v......
-
True v. Heitkamp
...relinquishment of a known right and must be made intentionally and with knowledge of the circumstances. Bindel v. Iowa Manufacturing Co. of Cedar Rapids, 197 N.W.2d 552 (Iowa 1972). Had the law regarding these various provisions been clear; had the Commissioner adopted formal rules and regu......
-
Wenndt v. Latare
...v. Gesink (Iowa), 180 N.W.2d 452, 457; Nelson v. Wolfgram (Iowa), 173 N.W.2d 571, 573, and citations.' Bindel v. Iowa Manufacturing Company of Cedar Rapids, Iowa, 197 N.W.2d 552 (filed May 11, Defendant contends in support of the judgment plaintiffs' claims in their amended petition are sti......
-
Haupt v. Miller, 92-1790
...in the light most favorable to the plaintiff with doubts resolved in that party's favor in ruling on the motion. Bindel v. Iowa Mfg. Co., 197 N.W.2d 552, 555 (Iowa 1972). A motion to dismiss is sustainable only when it appears to a certainty that the plaintiff would not be entitled to relie......