Harrison v. Ulicki

• Decision Date: 14 January 1972
• Docket Number: No. 54750,54750
• Citation: 193 N.W.2d 533
• Parties: Crystal HARRISON and Susan Harrison, by their Father and Next Friend Gerald Harrison, and Gerald Harrison, Individually, Appellants, v. John ULICKI, Appellee.
• Court: Iowa Supreme Court

Page 533

193 N.W.2d 533

Crystal HARRISON and Susan Harrison, by their Father and Next Friend Gerald Harrison, and Gerald Harrison, Individually, Appellants, v. John ULICKI, Appellee.

No. 54750.

Supreme Court of Iowa.

Jan. 14, 1972.

Ulstad & Guinan, Fort Dodge, for appellants.

Mitchell, Mitchell, Murray & Goode, Fort Dodge, for appellee.

REYNOLDSON, Justice.

Plaintiffs are two children stricken with hepatitis in the summer of 1968, and their father, who claims for their medical expense and loss of services. Petition comprised three divisions based on negligence, implied warranty, and nuisance in the construction and maintenance of an allegedly contaminated well on premises leased from defendant by an uncle and aunt of the minor plaintiffs. Jury was waived and trial court found for defendant. We affirm.

Defendant's 15 acre rental tract was annexed into the city of Fort Dodge in 1966. In 1965 defendant had constructed a septic tank and drilled a well, for use by tenants of the house. He testified without contradiction he told the tenants, Mr. and Mrs. Virgil Robbins, that the water had not been tested and they could obtain drinking water at his place. These tenants lived in the premises from 1966 to October 1969. Larry Kelley, Mrs. Robbins' brother-in-law, was the first to become ill with infectious hepatitis in the summer of 1968. Mrs. Robbins could not recall him ever drinking any water at her home. While Kelley testified he 'caught hepatitis there' he did not testify he drank any of the suspect water. Thereafter one of the Robbins children took sick with the disease. It then struck the two minor plaintiffs who played in the home and drank the well water when they accompanied their mother to the Robbins premises several times in July.

Before summarizing the evidence further, reference must be made to certain standard water tests. Evidence on this point, supplied for the most part by defendant's expert, was unrefuted and in fact partially substantiated by plaintiffs' witnesses.

Fecal coliforms (organisms) are normally found in the intestinal tracts of humans and animals. Non-fecal coliforms are customarily found in plant soils. Non-fecal coliforms are not associated with diseaseproducing organisms, which are called pathogens. Fecal coliforms are not pathogens either, but are significant when found in a water test as indicating that pathogens which also come from the intestinal tract might reach the water supply by the same route.

Three progressive stages of laboratory analysis of water are used to determine the existence of coliforms and distinguish the types. The first two tests, the 'presumptive' and 'confirmed', indicate coliform presence, but not the type. Only the final 'completed' or 'invict' test will determine if fecal coliforms are present in the water.

Turning to plaintiffs' evidence, a Fort Dodge water plant employee testified he performed the first two tests on water samples from the suspect well, identified coliforms, but did not carry out the third test to determine if fecal coliforms were present. He conceded the water he sampled could show a high coliform count and consist entirely of non-fecal coliforms.

The medical doctor who treated the Robbins child testified that while fecally-contaminated water could be a carrier of infectious hepatitis, he had no way of knowing whether the Robbins water was so contaminated. He also testified the disease could be transmitted in several ways, including use of a common drinking cup, not washing after going to the bathroom and other unsanitary situations. When a number of people come down with hepatitis at the same time the doctor 'would suspect a common source (such) as a well.'

Dr. Forrest Dannenbring treated one of the minor plaintiffs. He testified human facal matter is a medically recognized transmittal source of infectious hepatitis. Contaminated water can be a source of the disease as can 'just plain unsanitary conditions.' In this case 'he would not know the particular mode of transmission and there is no way he ever could know.' Neither he nor any other qualified witness testified it was probable the hepatitis was carried by pathogens from the water in defendant's well.

Plaintiffs proved the well and septic tank were only 39 feet apart. The health department plumbing code as found in the 1962 Iowa Departmental Rules (which parties stipulated the court should judicially notice) provided for a 50 foot minimum.

Defendant relied heavily on Dr. Edward Robert Baumann, a professor at Iowa State University. Two pages of the record carry his impressive qualifications in the areas of water pollution, hydrology and sanitary engineering. He inspected the premises on August 8, 1969 and September 4, 1969, and identified a number of pictures of the premises taken in his presence. These photographs verified his testimony and his conclusion that the unsanitary conditions he found were the worst he had ever encountered in all his experience. In his opinion, the contact transmission of the disease occurred because of these filthy surroundings.

I. Plaintiffs allege reversible error in the admission of the photographs identified by Dr. Baumann, claiming such photos, taken over one year after the children became ill, were too remote in time to be admissible.

Before the offer of this evidence and upon cross-examination, Mrs. Robbins had testified that the physical surroundings of the home, the furniture, the housekeeping and the general overall conditions were the same between the time the children became sick and the time she moved from the premises.

The admission or rejection of photographs rests largely in the discretion of the trial court. Van Horn v. Iowa Public Service Company, 182 N.W.2d 365 (Iowa 1970). A ruling on the admissibility of photographs will not be interfered with on appeal except upon a clear showing of abuse of discretion. Englund v. Younker Brothers, Inc., 259 Iowa 48, 142 N.W.2d 530 (1966). We have held a photograph taken long after the event may be admitted into evidence where the record establishes a substantial similarity of conditions between the time it was taken and the material date. Hardaway v. City of Des Moines, 166 N.W.2d 578 (Iowa 1969); Hartwig v. Olson, 261 Iowa 1265, 158 N.W.2d 81 (1968); Englund v. Younker Brothers, Inc., supra. In this case, the required foundation of similarity of conditions was supplied by testimony of Beverly Robbins. Admitting these photographs into evidence was not an abuse of discretion by the trial court. The weight to be given them was for the finder of fact.

II. Plaintiffs complain Dr. Baumann was permitted to describe conditions in the bathroom upon his inspections of the Robbins home. His visits, as indicated above, were in August and September of 1969, a year following the plaintiffs' illnesses and before Mr. and Mrs. Robbins left the premises in October. The witness testified,

'Well, the toilet bowl was full of fecal material, and obviously had not been functioning in an extended period of time. * * * There were thousands of flies all over the house, and this is without question the most revolting bathroom I have ever inspected.'

However, Mrs. Robbins had already testified general conditions and housekeeping were substantially the same during...