Harrop v. Keller

• Decision Date: 25 May 1977
• Docket Number: No. 58670,58670
• Citation: 253 N.W.2d 588
• Parties: Charles HARROP, Individually and Patty Harrop, a minor by her father and next friend, Charles Harrop, Appellants, v. Nancy KELLER and Bea Spurgin, a partnership d/b/a Brown's Tap, Appellees.
• Court: Iowa Supreme Court

Page 588

253 N.W.2d 588

Charles HARROP, Individually and Patty Harrop, a minor by her father and next friend, Charles Harrop, Appellants, v. Nancy KELLER and Bea Spurgin, a partnership d/b/a Brown's Tap, Appellees.

No. 58670.

Supreme Court of Iowa.

May 25, 1977.

Seymore M. Raben, Davenport, for appellants.

John J. Carlin, Carlin & Darbyshire, Davenport, for appellees.

Ralph D. Sauer, Davenport, for appellee Bea Spurgin.

Submitted to MOORE, C. J., and LeGRAND, UHLENHOPP, REYNOLDSON and HARRIS, JJ.

HARRIS, Justice.

In this dram shop action the petition and its amendments were challenged by a series of motions to dismiss. The central issue is a claimed violation of the notice requirement of § 123.93, The Code. The trial court held the notice requirement had not been met and dismissed the petition. On plaintiff's appeal we reverse the trial court and remand.

The factual background as shown by the allegations of plaintiff's petition is as follows:

On June 23, 1972 Charles Harrop (plaintiff) (for convenience plaintiffs, whose claims arise through the same incident, will be referred to in the singular) was a paying customer in a tavern owned by Nancy Keller and Bea Spurgin (defendants). Another customer in the tavern at the time was Terry Logan. Plaintiff alleges Logan was served intoxicating liquors by defendants' employees to the point where he was intoxicated. It is alleged defendants knew or reasonably should have known Logan had consumed intoxicating liquors to the point of intoxication.

While in the tavern plaintiff was stabbed by Logan. As a result of the stabbing plaintiff suffered substantial internal injuries which caused his hospitalization, with the exception of two weeks, from the date of injury to December 28, 1972. The two weeks plaintiff was not hospitalized were over the Thanksgiving holiday and he remained incapacitated during that period.

Plaintiff's petition was filed January 22, 1973, more than six but less than seven months after the injury. On February 13, 1973 defendants filed a motion to dismiss, contending plaintiff had failed to allege notice was given to defendants within six months of the injuries as required by § 123.93. The trial court apparently never ruled on this motion.

On February 22, 1973 plaintiff filed an amendment to his petition alleging incapacitation prevented the timely filing of notice. The amendment further alleged service of original notice with petition attached was itself notice within a reasonable time.

On March 8, 1973 defendants filed a motion to dismiss, to strike, and for more specific statement, asserting insufficient facts were alleged in plaintiff's petition as amended to satisfy § 123.93.

On May 9, 1973 the trial court sustained the motion to dismiss holding (1) notice must be given and (2) plaintiff failed to allege sufficient facts to show the injury prevented him from giving notice, " * * * with leave granted plaintiff to amend such petition to allege facts sustaining a cause of action, within 20 days of the date of this order."

On May 15, 1973 plaintiff filed a second amendment. This amendment added a paragraph asserting he was incapacitated during the six month period for notice and alleged he filed the action within a reasonable time after his incapacity. The amendment asserted the incapacity resulted from the necessity of recuperation from the injury caused as a result of the knifing and the hospitalization and treatment necessary in attempting to cure the same. On June 12, 1973 the trial court, on defendants' motion, dismissed the petition, holding plaintiff had failed to plead any additional facts. In the order of dismissal the trial court provided: " * * * Plaintiffs shall have ten days from the date of this order to file additional amendments, if any, as he so elects."

On June 14, 1973 plaintiff filed a third amendment to the petition. The third amendment was similar to the second but added a phrase stating hospitalization made it impractical and unreasonable for him to attempt to hire and counsel with an attorney. On June 27, 1973 defendants moved to dismiss the amended petition for the same reasons alleged in their earlier motions to dismiss. For some reason this motion was not ruled upon until August 19, 1975, at which time the trial court sustained the motion and dismissed the petition on the ground plaintiff failed to give notice as required by § 123.93.

I. It is appropriate to first consider defendants' threshold contention that the order dismissing the petition as amended the third time is not an appealable order. Defendants believe the third amendment was essentially identical to the second. They argue the only addition was the phrase "and did make impractical and unreasonable any attempts to hire and counsel with an attorney of his choice." Defendants believe this phrase is at best a conclusion of the pleader and alleged no additional facts to sustain the claim of incapacitation. Defendants rely on Union Trust & Sav. Bank v. Stanwood Feed & Grain, Inc., 158 N.W.2d 1, 3 (Iowa 1968).

Defendants contend the ruling sustaining the motion to dismiss the petition as amended the third time was not a final order because the ruling sustaining the previous motion to dismiss was a final order. They argue:

" * * * A continual repleading of the same facts for submission to different judges with the apparent hope that another individual might view the matter differently should not be condoned. Expeditious determination of the controversy is not assuaged by such procedure. It is submitted that the way for plaintiff to determine whether he had alleged sufficient facts as stated in the second amendment was by a timely appeal from the alleged erroneous order. He did not do so and should not be able to raise this issue now."

We do not believe the ruling sustaining the motion to dismiss the second amended petition was a final order. It is to be noted the trial court granted plaintiff leave to amend his petition in order to avoid dismissal.

Our cases are legion on the crucial question of whether a trial court order is final (and appropriate for appeal under rule 331, Rules of Civil Procedure) or is interlocutory (for which permission to appeal must be obtained under rule 332). The special question presented here is the effect upon an otherwise final order of an included provision granting the losing party permission to replead. Our cases hold the answer depends on whether the losing party takes advantage of the permission granted. If the party repleads such an order is not considered final; if the losing party does not replead the order is final. Winneshiek Mutual Ins. Assn. v. Roach, 257 Iowa 354, 359, 132 N.W.2d 436, 439-440 (1965). See also Murphy v. First Nat. Bank of Chicago, 228 N.W.2d 372, 375 (Iowa 1975); Halvorson v. City of Decorah, 257 Iowa 453, 456, 133 N.W.2d 232, 233 (1965); Wernet v. Jurgensen, 241 Iowa 833, 835-836, 43 N.W.2d 194, 196 (1950); Wright v. Copeland, 241 Iowa 447, 449-450, 41 N.W.2d 102, 103-104 (1950); 4 C.J.S. Appeal and Error § 116, pp. 332-333; 4 Am.Jur.2d, Appeal and Error, § 101, pp. 616-618.

Plaintiff in the instant case elected not to stand on the second amended petition after the ruling sustaining the motion to dismiss. Rather he elected to plead further. It cannot be said he acted in bad faith. It is no reflection on plaintiff that some two years passed before the trial court ruled on the sufficiency of the third amendment to the petition. The responsibility for prompt and orderly rulings is upon the trial court, not upon the parties or counsel. Rule 117, R.C.P.

After plaintiff's third amended petition was dismissed he was given no permission to, and did not seek to, plead further. Consequently the only dismissal which was a final order was the one from which this appeal was taken.

We do not believe defendants' reliance on Union Trust & Sav. Bank, supra, is well placed. We believe the wording of plaintiff's third amendment is sufficiently different from the wording of the second amendment to demonstrate a good faith attempt to correct deficient pleadings under rule 86, R.C.P. There is nothing to indicate otherwise. It is true, under Union Trust &amp Sav. Bank, rule 86 was not intended to permit a party to match his will against the will of the trial court. On the other hand rule 86 was intended to provide every reasonable opportunity for correction. If a party must fear loss of his appeal rights for pleading further it cannot be said immediate correction is encouraged.

Defendants' contention the ruling appealed from was not an appealable order is without merit.

II. Plaintiff contends the trial court erred in dismissing his petition for failure to give written notice as required by § 123.93, The Code. The section provides in material part:

"Within six months of the occurrence of an injury, the...