Burris v. Titzell, No. 32674.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtPER CURIAM.
Citation179 N.W. 851,189 Iowa 1322
Decision Date23 November 1920
Docket NumberNo. 32674.
PartiesBURRIS v. TITZELL.

189 Iowa 1322
179 N.W. 851

BURRIS
v.
TITZELL.

No. 32674.

Supreme Court of Iowa.

Nov. 23, 1920.


Appeal from District Court, Johnson County; R. G. Popham, Judge.

Former opinion (177 N. W. 557) modified and affirmed.

[179 N.W. 851]

PER CURIAM.

Plaintiff and defendant have each filed a petition for rehearing. Upon a careful reconsideration of the record, we reach the conclusion that the issues tendered in the first count of plaintiff's petition should have been submitted to the jury. In our former opinion we reached the conclusion that the allegations of count 1 of plaintiff's petition went no further than to charge negligence in the method of securing the attachment of the rubber tube to the body of plaintiff at the time the first operation was performed. Evidence was introduced from which the jury might have found that, notwithstanding the tube may have been properly secured in the first instance, the defendant later knew that it had broken loose and that he failed to again secure it. The allegations of this count of plaintiff's petition are not as clear and explicit as they might well have been made, but we think them sufficient to charge the defendant with negligence

[179 N.W. 852]

in failing and neglecting to again securely attach the tube to plaintiff's body after he discovered that it was loose. The construction heretofore put upon the pleading is somewhat narrow and technical. In so far, therefore, as we held in our former opinion that the plaintiff was not entitled to have the issues joined upon the first count of his petition submitted to the jury, the opinion is modified and disapproved, and plaintiff's petition for rehearing upon this point is sustained, but otherwise overruled. Defendant's petition for rehearing is overruled.

WEAVER, C. J., and LADD, ARTHUR, and STEVENS, JJ., concur.

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7 practice notes
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...“negligence,” both “pleaded” and proved. Borland v. Lenz, 196 Iowa, 1148, 194 N. W. 215;Burris v. Titzell, 189 Iowa, 1322, 177 N. W. 557;179 N. W. 851; on the other hand, “res ipsa loquitur” is not a rule of “pleading,” but rather an inference aiding in the “proof.” With those essentials in......
  • Corn v. French, No. 3809
    • United States
    • Nevada Supreme Court of Nevada
    • October 27, 1955
    ...was considered unnecessary. See annotation 141 A.L.R. 5. As observed by the court in Burris v. Titzell, 189 Iowa 1322, 177 N.W. 557, 562, 179 N.W. 851; '[C]ases do arise where common knowledge of physical facts and of the natural laws that govern physical life are so well known that a jury,......
  • Stickleman v. Synhorst, No. 48012
    • United States
    • United States State Supreme Court of Iowa
    • April 1, 1952
    ...11 N.C.C.A. 728; Kopecky v. Hasek Bros., 180 Iowa 45, 49, 50, 162 N.W. 828, 830; Burris v. Titzell, 189 Iowa 1322, 1335-6, 177 N.W. 557, 179 N.W. 851; Whetstine v. Moravec, 228 Iowa 352, 370-373, 291 N.W. 425; Anno. 141 A.L.R. 5, 12, This from Evans v. Roberts, supra [172 Iowa 653, 154 N.W.......
  • Meeker v. City of Clinton, No. 59113
    • United States
    • United States State Supreme Court of Iowa
    • November 23, 1977
    ...acts many times in Iowa. See for example, Burris v. Titzell, 189 Iowa 1322, 1336-1337, 177 N.W. 557, 563, mod. on reh. 189 Iowa 1322, 179 N.W. 851; Nelson v. Langstrom, 252 Iowa 965, 970, 108 N.W.2d 58, 61; Davis v. L & W Construction Company, 176 N.W.2d 223, 227 (Iowa 1970); Northrup v......
  • Request a trial to view additional results
7 cases
  • Whitmore v. Herrick, No. 38636.
    • United States
    • United States State Supreme Court of Iowa
    • March 6, 1928
    ...“negligence,” both “pleaded” and proved. Borland v. Lenz, 196 Iowa, 1148, 194 N. W. 215;Burris v. Titzell, 189 Iowa, 1322, 177 N. W. 557;179 N. W. 851; on the other hand, “res ipsa loquitur” is not a rule of “pleading,” but rather an inference aiding in the “proof.” With those essentials in......
  • Corn v. French, No. 3809
    • United States
    • Nevada Supreme Court of Nevada
    • October 27, 1955
    ...was considered unnecessary. See annotation 141 A.L.R. 5. As observed by the court in Burris v. Titzell, 189 Iowa 1322, 177 N.W. 557, 562, 179 N.W. 851; '[C]ases do arise where common knowledge of physical facts and of the natural laws that govern physical life are so well known that a jury,......
  • Stickleman v. Synhorst, No. 48012
    • United States
    • United States State Supreme Court of Iowa
    • April 1, 1952
    ...11 N.C.C.A. 728; Kopecky v. Hasek Bros., 180 Iowa 45, 49, 50, 162 N.W. 828, 830; Burris v. Titzell, 189 Iowa 1322, 1335-6, 177 N.W. 557, 179 N.W. 851; Whetstine v. Moravec, 228 Iowa 352, 370-373, 291 N.W. 425; Anno. 141 A.L.R. 5, 12, This from Evans v. Roberts, supra [172 Iowa 653, 154 N.W.......
  • Meeker v. City of Clinton, No. 59113
    • United States
    • United States State Supreme Court of Iowa
    • November 23, 1977
    ...acts many times in Iowa. See for example, Burris v. Titzell, 189 Iowa 1322, 1336-1337, 177 N.W. 557, 563, mod. on reh. 189 Iowa 1322, 179 N.W. 851; Nelson v. Langstrom, 252 Iowa 965, 970, 108 N.W.2d 58, 61; Davis v. L & W Construction Company, 176 N.W.2d 223, 227 (Iowa 1970); Northrup v......
  • Request a trial to view additional results

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