Brown v. Nebiker
| Decision Date | 18 February 1941 |
| Docket Number | 45378. |
| Citation | 296 N.W. 366,229 Iowa 1223 |
| Parties | BROWN v. NEBIKER et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Union County; H. H. Carter, Judge.
Suit by the administratrix of the estate of Robert E. Brown deceased, to collect damages for the alleged wrongful death of Robert E. Brown. Defendants filed a general denial. At the close of plaintiff's evidence, the lower court sustained a motion for a directed verdict. Plaintiff has appealed. Opinion states the facts.
Affirmed.
Ed Fackler, Jr., of Corning, Thomas E. Mullin, of Creston, and O. M. Slaymaker, R. E. Killmar, and D. D. Slaymaker, all of Osceola, for appellant.
Kenneth H. Davenport and Healey & Reynolds, all of Creston for appellees.
The plaintiff as administratrix of the estate of Robert E. Brown, deceased, commenced this action against the defendants, the Iowana Hotel Company of Creston, Iowa, a corporation engaged in the hotel and restaurant business, and J. F. Nebiker, the operator and manager of said hotel, as codefendant.
The petition alleges that on the 20th day of April, 1939, the plaintiff's decedent became a guest at the restaurant of the defendants and was there served with food, including a pork chop, and the decedent ate such food, including said pork chop, as prepared and served to him by the defendants. That the pork chop contained a sharp sliver of bone, not apparent to or discernible by the decedent. That the decedent ate a part of the pork chop and a sliver of bone concealed in the meat became lodged in his throat and tore a hole in the walls of the esophagus and the injury set up an infection which caused his death on the 23rd day of April, 1939. That this action is at law to recover damages from the defendants, on account of serving the decedent the pork chop with the sliver of bone concealed therein.
That the substituted petition is in two counts. Count 1 is based upon an allegation of general negligence and carelessness, under the rule of res ipsa loquitur, and count II is based on the theory of an implied warranty on the part of the defendants that the food contained nothing injurious to the lives and health of any of its patrons, and that there was a breach of such implied warranty, and that the defendants are liable for the injury and damage done to the decedent's estate.
The defendants filed a general denial and made no other defenses.
At the end of the plaintiff's evidence the defendants made motions to withdraw Counts I and II of plaintiff's substituted petition and also filed a joint motion for a directed verdict and all of these motions were sustained by the trial court, a verdict was then returned by the jury, and judgment was rendered against the plaintiff dismissing her substituted petition and cause of action and rendering judgment against her for the costs of this action. The district court having jurisdiction of the settlement of the estate of the decedent made an order authorizing and permitting this appeal and plaintiff did in due time appeal from the judgment so rendered by the district court.
Robert E. Brown was a long-time resident and citizen of Prescott, Adams County, Iowa, and prior to the 20th day of April, 1939, was a local salesman for the DeKalb Agricultural Association, which was engaged in the sale of DeKalb hybrid seed corn. Floyd D. Young of Lenox, Iowa, was a supervisor for this association and was the immediate superior of the decedent. Mr. Young had other salesmen under him and he had been having evening meetings of the salesmen at the Iowana Hotel dining room in Creston and other places in his territory. Mr. Young notified his salesmen, including the decedent that a meeting would be held in the Iowana Hotel dining room at 6:30 on April 20, 1939. There were probably a dozen other local salesmen who attended this dinner and it was held in what is called the " Blue Room", which is north of the manager's desk in the appellee's hotel in Creston, Iowa. The meal was ordered by Mr. Young and paid for by the DeKalb Agricultural Association and served by the defendants. Mr. Young arranged with Mr. Nebiker for this meal and Mr. Young told him that he wanted pork chops served. Decedent had nothing to do with ordering this meal. The meal, meat and everything else that was furnished, was selected, prepared, cooked and served by the appellees and the help used was the help of the appellee's. The appellee had the exclusive control of selecting and preparing the foods served. The price paid was sixty-five cents per plate. The table was in the form of a letter " U" . The decedent came to the hotel from his home at Prescott and was in good health. At the table he sat facing the west. He had been to a number of these dinners prior to that time. The pork chop served was breaded or covered with some coating. The witnesses differ in regard to the kind of a coating. About two months prior to the 20th day of April, 1939, the decedent had his teeth extracted and on this date was sixty years of age. The appellees served to the decedent a meal, including one of these pork chops. Very soon after the decedent began to eat he got up, said he had a bone in his throat, and left the room. He coughed and tried to get it dislodged but was unable to do so. Soon after this he and Mr. Hammer, another salesman, went to the office of Dr. Barber but the doctor was unable to remove the bone. He was then sent to a Dr. Sampson and X-ray pictures were taken and some foreign substance was discovered lodged in the esophagus. Dr. Sampson was not able to remove this substance and the decedent was advised to go to a specialist in Des Moines. Early the next morning Mr. Young took the decedent to a Dr. James A. Downing, Bankers Trust Building, Des Moines, Iowa, and Dr. Downing examined the decedent and advised him to go to the Methodist Hospital and there submit to an operation. The decedent at once went to the hospital and the operation was performed about 11:30 in the forenoon of April 21, 1939. The operation consisted of inserting a laryngospeculum, which is a tube twenty-five centimeters long, with a light in the pistol, and attached to a dry cell for illumination, so that the esophagus could be opened and looked into through the lumen of the tube. When the cricoid cartilage was lifted the upper end of the esophogus was swollen. It was discolored from dark red to blue. As the esophagus was opened some material was seen just ahead of the speculum and an attempt was made to grasp it with the forceps but it slid down ahead of the speculum, evidently being held by the muscle spasm, and as soon as the speculum released the muscle spasm, the foreign body slid on down the esophagus. Dr. Downing with the aid of the speculum, got hold of the foreign substance and removed a small piece of meat. It was about the size of a small bean. Dr. Downing discovered on the right posterior wall of the esophagus just below the upper opening, a tear in the wall of the esophagus. The doctor said he could not give the exact size of the tear but it might have been from an eighth of an inch to a quarter of an inch long. It was apparently a ragged hole. It went through the esophagus wall. After the speculum was pushed down the esophagus the doctor again saw this foreign material as it got to the opening of the stomach, but it passed into the stomach so quickly he was unable to get hold of it with the forceps and extract it. The doctor said it had the appearance of a piece of meat. The doctor testified that he had never heard of meat being cooked so hard that it would tear the wall of the esophagus, and it was his judgment that to make such a hole in the esophagus would require a sharp piece of material like a sharp piece of bone, or something of that kind. It would have to be hard material to tear a hole in the esophageal wall. The doctor also testified that the injury he found could have been caused by a sharp piece of bone. This operation was performed on Friday, April 21, 1939. The infection that was caused by reason of the tear in the esophagus progressed rapidly and Robert E. Brown died on Sunday, April 23, 1939, at approximately seven o'clock in the evening.
The evidence in this case showed that several people who attended the dinner found bone in their pork chop. The appellant offered as evidence, the testimony of five people who attended the dinner given by Mr. Young at the Iowana Hotel on the evening of April 20, 1939. They all testified that they found bones in the pork chops which they ate. They were of various sizes and shapes. One was described as being the size of a tooth pick, or probably a little longer. None of these witnesses, nor any of the other guests that night suffered any harm from the bones that they testified were in the pork chops, with the exception of Mr. Brown who had no teeth, either natural or false.
One of the errors complained of is that the lower court refused to permit the appellant to offer the evidence of more than five witnesses, who attended the dinner, to testify that they found bones in the pork chops which they ate. The appellant offered to prove by three other witnesses who attended the dinner that they found bones of various sizes and shapes in the pork chops which were served them. The court refused to permit these witnesses to testify on the grounds that in the Third Judicial District, where this case was tried there is a rule that limits parties to five witnesses on a collateral issue. We do not find it necessary to pass upon this question. The evidence offered was only cumulative and the court had already permitted five witnesses to testify on this question. Under appellant's theory, if there had been five hundred at the dinner, each should have been permitted to appear as a witness. This...
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