Feldhahn v. R.K.B. Quality Corp.
| Decision Date | 17 October 1984 |
| Docket Number | No. 83-435,83-435 |
| Parties | Leroy A. FELDHAHN and Bernadine V. Feldhahn, Appellants, v. R.K.B. QUALITY CORP., Appellee. |
| Court | Iowa Supreme Court |
Jack E. Dusthimer of Goebel & Koury, Davenport, for appellants.
John D. Stonebraker of McDonald, Stonebraker & Cepican, Davenport, for appellee.
Considered by REYNOLDSON, C.J., and HARRIS, McCORMICK, SCHULTZ, and CARTER, JJ.
Plaintiffs are homeowners who sued a plastering corporation, claiming defective workmanship. We granted further review after the court of appeals rejected, on preservation grounds, plaintiffs' challenge to a trial court ruling which withdrew the plaintiffs' negligence count from jury consideration.
It was admitted the parties contracted for the installation of plaster and drywall in plaintiffs' home. Plaintiffs asserted that defendant's workmanship was defective, that paint, wallpaper, and wall covering would not adhere to the plaster. Plaintiffs assert they were compelled to remove and replace plaster wallboard, electric heat apparatus electric and plumbing fixtures, tile and trim.
Plaintiffs alleged four theories of recovery: contract; breach of express warranty; breach of implied warranty; and negligence. The appeal has to do with the negligence claim which the defendant moved to dismiss after plaintiffs rested. The trial court overruled the motion. The stated reasons are perplexing:
[N]egligence is not going to go to the jury, but I am not going to strike it, because I don't think that's appropriate either. The negligence count alleges nothing different than the allegations concerning breach of contract, essentially.... Now, the reason I don't plan on sending that to the jury is because it would be impossible to prevent the verdict in view of the fact that the warranties are admitted. It's the court's proposal that the court will only submit the issue as to breach of warranty, and will not submit the negligence issue, but I don't think, counsel, the appropriate method is to strike the division, because it's a perfectly proper pleading, and there is evidence to support it.
Also perplexing is the trial court's perceived distinction between dismissing the negligence count and withdrawing it. 1 The defendant immediately amended the motion to ask that the negligence issue be withdrawn from the consideration of the jury. In sustaining the motion, the trial court responded: "[t]hat the court will do."
Plaintiffs then requested the court to reserve ruling until all the evidence was in. The court responded: "the evidence all related to the breach of contract." 2 It then stated:
I will allow you at this point in time to elect--if you wish to have the negligence count go to the jury, you can elect to do so now, and that's fine, but now is the time.
It is arguable that this statement, if taken out of context, could be interpreted as allowing plaintiffs to have the negligence claim submitted together with their other claims. That is, the word "elect" could be stretched so that this statement might be thought of as an offer to retract and reverse the prior ruling which sustained the motion to withdraw.
On review defendant suggests this interpretation. But the statement must be read in context. When it is, we understand it as a requirement that plaintiffs elect whether to pursue the negligence claim alone, or to drop it in favor of the other theories. Our understanding is supported by the trial court's confusing explanation of its ruling: "I don't plan on sending that to the jury because it would be impossible to prevent the verdict in view of the fact that the warranties are admitted." This statement, whatever its import, does not support the view that plaintiffs were offered the choice of having all four theories of recovery submitted.
Our understanding is further borne out by the next statement of the trial court:
Well, the court's ruling is that these are the very issues that are going ... to the jury, on breach of contract, which includes both express and implied warranties, and there are no other issues. There is no issue concerning whether there were such warranties or whether they existed. The only issue is were they breached. That's point number 1. If that hurdle is surmounted by you and your argument to the jury, then the second hurdle is then the amount of damages which--those are the only two items in dispute as the court now sees the pleadings and the evidence. You presented nothing in your evidence that would produce a new ground for negligence independent of the contract, and therefore, whether it's proper or not--I'm doing all this in case somebody takes this up on appeal, the supreme court can see how the court muddled through it--the negligence count is now withdrawn....
I. The court of appeals held that the plaintiffs had not preserved error on the negligence issue. The holding was based on the fact that there were no exceptions to the instructions. The court of appeals held that the plaintiffs should have again raised the point when given an opportunity to object the court's proposed instructions. The court of appeals likened the situation to our holding in Anderson v. Wilcox, 189 N.W.2d 541 (Iowa 1971). In Anderson, at 545-46, we pointed out that a peremptory ruling informing counsel an instruction will not be given does not obviate the obligation to object to the final draft of instructions under the procedure provided in rule of civil procedure 196.
Our difference with the court of appeals is that the ruling complained of here was more than peremptory. A ruling which withdraws an issue from jury consideration is an adjudication that the claim is out of the case. This is the very reason for making such a motion at the close of plaintiffs' evidence. The ruling on it will usually impact directly on the extent and scope of evidence the defense will thereafter offer. The ruling is one of law. See 88 C.J.S. Trial § 223 (1955); 75 Am.Jur.2d Trial § 342 (1974).
We see no need for plaintiff's counsel, at the time of taking exceptions to the instruction, to again complain or take exception to a prior ruling which withdrew an...
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