Hutchinson v. Des Moines Housing Corp.

• Citation: 84 N.W.2d 10,248 Iowa 1121
• Decision Date: 26 June 1957
• Docket Number: No. 49246,49246
• Parties: Tom C. HUTCHINSON, as Administrator of the Estate of Margaret Anne Hutchinson, Deceased, Appellant, v. DES MOINES HOUSING CORPORATION, Fort Des Moines Community Services, Incorporated, and Bruno Ceretti, Appellees.
• Court: United States State Supreme Court of Iowa

Page 10

84 N.W.2d 10

248 Iowa 1121

Tom C. HUTCHINSON, as Administrator of the Estate of Margaret Anne Hutchinson, Deceased, Appellant, v. DES MOINES HOUSING CORPORATION, Fort Des Moines Community Services, Incorporated, and Bruno Ceretti, Appellees.

No. 49246.

Supreme Court of Iowa.

June 26, 1957.

Jones, Rockwell & Oliver, Des Moines, for appellant.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, for appellee, Des Moines Housing Corp.

Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellee, Fort Des Moines Community Services, Inc.

Hallaghan, Irish & Burt, Des Moines, for appellee, Bruno Ceretti.

PETERSON, Justice.

This action involves the ruling of the trial court on motions to strike parts of plaintiff's petition, filed by the three defendants. The motions were all sustained. The case comes to us under interlocutory appeal granted in accordance with 58 I.C.A.R.C.P. 332.

During World War II the United States Government erected a large number of houses and some commercial and recreation buildings for use of training personnel in the Fort Des Moines area. Shortly after the war the houses and buildings were vacated. A corporation known as Des Moines Housing Corporation was organized and the corporation rented all the property from General Services Administration of the United States Government. It re-rented the houses to veterans, and rented the other buildings for commercial and recreational purposes. Another corporation was formed known as Fort Des Moines Community Services, Inc., which was in charge of recreational services for the area. These were centered in a recreation building described as building 318. This building was under the joint control and management of the two corporations. Des Moines Housing Corporation rented a part of the building to defendant, Bruno Ceretti, for tavern purposes. The Housing Corporation rented apartments in the building on the second floor as living apartments. One apartment was rented to the Tedrow family consisting of four members. On the night of February 15-16, 1956, Margaret Anne Hutchinson, the daughter of plaintiff, was visiting the Tedrow family and stayed all night. While the family and Margaret were asleep in the apartment, and early in the morning of February 16th, a terrible tragedy occurred. The recreation building caught on fire and was completely destroyed and Margaret Anne and the four members of the Tedrow family were burned to death.

Plaintiff was appointed administrator of Margaret Anne's estate and on December 12, 1956, a petition was filed claiming damages for the death from the two corporations and Bruno Ceretti. Division I of the petition contained the customary allegations for damages, outlining in substance the facts as above stated and alleged reliance upon the doctrine of res ipsa loquitur. Defendants filed no motions as to this division. Division II is based on the doctrine of specific negligence. The first seven paragraphs are the same as alleged in Division I. The questions involved herein pertain to paragraph eight and sub-section (a) of paragraph nine. These two paragraphs, with pertinent other allegations, are as follows:

'7. * * * That at the time of said fire, the instrumentalities that caused the said fire were under the joint and exclusive control and management of the Defendants.

'8. That as a part of the services to be rendered by Des Moines Housing Corporation to the Fort Des Moines Housing Area, was the conducting and maintaining of a Fire Department, and that said Des Moines Housing Corporation did furnish, conduct, and maintain a Fire Department in the Fort Des Moines Housing Area from 1946 to about December 1, 1955; and after December 1, 1955, said Des Moines Housing Corporation had an agreement with the Bloomfield Township Voluntary Fire Department for services of rendering fire protection to the Fort Des Moines Area. That the Des Moines Housing Corporation and the Fort Des Moines Community Services Incorporated, jointly furnished electricity and heat to the occupants of the Fort Des Moines Housing Area, and in said furnishing of said utilities mentioned herein, it was the duty of the Des Moines Housing Corporation and Fort Des Moines Community Services Incorporated to maintain adequate inspection so as not to permit the Fort Des Moines Housing Area, and particularly Building #318, to become a fire hazard, by adequate periodic inspection and maintenance of electrical repairs, and their failure was such negligence that contributed to the said injury and subsequent death of the plaintiff. (This paragraph was stricken)

'9. Plaintiff alleges that the fire as above related and the subsequent death, were directly and proximately caused by the negligence of the Defendants, jointly and severally in the following respects.

'(a) By failing to conduct and maintain a fire department and adequate fire protection and inspection. (This section was stricken)

'(b) By allowing pennies to be placed in the fuse sockets thereby allowing an overload of electricity to flow through the wires and thus creating a dangerous condition and a fire hazard.

'10. That the negligence of the Defendants was the proximate cause of the fire and the death of the deceased, as a result thereof.'

Des Moines Housing Corporation filed motion to strike paragraph 8 as an opinion and conclusion and as argumentative and immaterial; and alleging that it constitutes improper and unnecessary matter and that no breach of contract between moving defendant and any other defendant or Bloomfield Township Fire Department was pleaded, and that neither plaintiff nor plaintiff's decedent had a right of action in tort by virtue of any agreement.

Fort Des Moines Community Services, Inc., filed motion to strike paragraph 8 and sub-section (a) of paragraph 9 on the grounds that same constitute an opinion and conclusion, and are improper and argumentative in character; that an attempt is made by plaintiff to cast a burden on defendant not recognized in law and not a proper allegation of negligence, and that the facts alleged do not establish any duty on the part of defendant.

Motion to strike was filed by defendant, Bruno Ceretti, as to sub-section (a) of paragraph 9 for the reason that no facts are alleged establishing any duty on the part of Ceretti to conduct and maintain fire protection or a fire department and that said allegation is improper, unnecessary, a conclusion, and argumentative in character.

The trial court sustained all 3 motions to strike.

I. We will first consider the motion to strike of defendant Ceretti. It pertains only to paragraph 9(a), which alleges Ceretti, with the other defendants, was negligent 'by failing to conduct and maintain a fire department and adequate fire protection and inspection'. This is a conclusion and plaintiff made no allegations of fact concerning Ceretti on which to base this conclusion. In order to constitute proper and effective pleading a conclusion concerning negligence must be based upon proper and pertinent facts. Taylor County Farm Bureau v. Board of Supervisors, 218 Iowa 937, 252 N.W. 498; Benton v. Morningside College, 202 Iowa 15, 209 N.W. 516; 71 C.J.S. Pleading §§ 17 and 18; Townsend v. Armstrong, 220 Iowa 396, 260 N.W. 17; Andrew v. Hartford Accident & Indemnity Co., 207 Iowa 652, 223 N.W. 529, 535; Ceretti was a tenant in the recreation building renting a small section in which he conducted a tavern. It is impossible to conceive of any duty or obligation on his part to maintain a fire department on behalf of his co-tenants, the Tedrows, or anyone in privity through them. R.C.P. 113 provides: 'Improper or unnecessary matter in a pleading may be stricken out on motion of the adverse party.' The ruling of the trial court was proper under this rule as well as under the citations set out.

II. The first section of paragraph 8 is a statement to the effect that part of the services to be rendered by Des Moines Housing Corporation was maintenance of a fire department. There is no allegation concerning any agreement to this effect, either oral or written. Plaintiff's position seems to be based on the fact that the Housing Corporation did maintain a fire department from 1946 to 1955. Plaintiff then alleges that from and after December 1, 1955, the Housing Corporation had an agreement with Bloomfield Township Voluntary Fire Department for rendering fire protection to the Fort Des Moines area. There is no allegation of failure to act in connection with the fire. In paragraph 9(a) plaintiff alleges the conclusion that defendants failed to maintain an adequate fire department. The peculiar part of the situation is that in paragraph 8 plaintiff alleges fire protection was furnished by one method or another up until the time of the catastrophe. In 9(a), somewhat in contradiction as to this statement of fact, plaintiff alleges a failure to conduct and maintain a fire department. The fact that the building was destroyed by fire is not within itself evidence of negligence. There seems to be a suggestion that some unperformed duty rested upon the Housing Corporation because of the change from maintenance of a fire department, to an agreement with Bloomfield Township Voluntary Fire Department to render fire protection to the area. This suggestion is not effective to justify retention of said section of paragraph 8. It is probable that 75 to 80% of the villages, towns and small cities of Iowa are protected by the maintenance of volunteer fire departments. It is a generally recognized and acceptable fire protection service. As to defendant Ceretti paragraph 9(a) was stricken because no facts were alleged on which to base the conclusion. It is equally fatal when no pertinent, relevant, nor material facts are alleged to support the conclusion as to negligence. R.C.P. 113; Johnstone v. Johnstone, 226 Iowa 503, 512, 284 N.W. 379, 384; Boyd v. Christiansen, 229 Iowa 1, 3, 293 N.W. 826, 828; Cresswell v. Wainwright, 154...