McGuire v. City of Cedar Rapids, 54408

• Decision Date: 09 September 1971
• Docket Number: No. 54408,54408
• Citation: 189 N.W.2d 592
• Parties: Carolyn I. McGUIRE, Guardian and Conservator of Patrick LeRoy McGuire, and Carolyn I. McGuire, Individually, Appellants, v. CITY OF CEDAR RAPIDS, Iowa, Appellee. DORY BUILDERS, INC., Defendant and Third-Party Plaintiff, v. CITY OF CEDAR RAPIDS, Iowa, and Howard R. Green Company, Third-Party Defendants.
• Court: Iowa Supreme Court

Page 592

189 N.W.2d 592

Carolyn I. McGUIRE, Guardian and Conservator of Patrick LeRoy McGuire, and Carolyn I. McGuire, Individually, Appellants, v. CITY OF CEDAR RAPIDS, Iowa, Appellee.

DORY BUILDERS, INC., Defendant and Third-Party Plaintiff, v. CITY OF CEDAR RAPIDS, Iowa, and Howard R. Green Company, Third-Party Defendants.

No. 54408.

Supreme Court of Iowa.

Sept. 9, 1971.

Keith, Gallagher, Lybbert & Martin, Waterloo, for appellants.

David F. McGuire, Cedar Rapids, for appellee.

Shuttleworth & Ingersoll, Cedar Rapids, for defendant and third-party plaintiff.

Barnes, Wadsworth, Elderkin, Locher & Pirnie, Cedar Rapids, for third-party defendants.

MASON, Justice.

Carolyn I. McGuire filed a petition at law consisting of four divisions to recover damages for injuries sustained by her husband, Patrick. Two of these divisions are against the city of Cedar Rapids, a municipal corporation, and in the other two Dory Builders, Inc., a Minnesota corporation authorized to do business in Iowa, is named defendant. All claims for damages arise from the same accident at the Cedar Rapids Disposal Plant September 21, 1967. The matter comes to us on plaintiffs' appeal from the trial court's ruling sustaining the motion of Cedar Rapids to dismiss those divisions of the petition directed to the City.

Cedar Rapids operated within the city a sewage disposal plant under the power delegated to it to do so. Section 368.26, The Code. As a part of this plant, the City maintained a building known as a final sludge pumping station. Sometime before the accident the City had contracted with Dory Builders to complete certain repairs and improvements to its sewage disposal plant. The work in progress on September 21 was being performed in accordance with the contract under the supervision of and inspection by employees and agents of the City and Dory Builders.

About 6 p.m. an odorless, invisible and lethol concentration of poisonous sewage gases had accumulated in a dry well pit of the final sludge pumping station. Patrick McGuire, an engineer employed by the Green Engineering Company, entered the building at this time to attempt to rescue two employees of Dory Builders who had previously entered the structure and were lying in the bottom of the dry well pit. After he had entered the building, McGuire was overcome by the gas and as a consequence has been totally and permanently disabled, physically and mentally.

In division 1 Mrs. McGuire brings a separate action as conservator of her husband's property against Cedar Rapids for damages. She alleges the City's negligence was a proximate cause of his injuries. In division 2 Mrs. McGuire re-alleges the same grounds against the City as a theory of recovery of damages allegedly sustained by her individually as a result of loss of her husband's consortium.

In division 3 Mrs. McGuire's action as conservator is against only Dory Builders. She alleges the company's negligence was a proximate cause of Mr. McGuire's injuries and damages. In division 4 she states the same grounds for a cause of action against Dory for those damages suffered by her as an individual by reason of loss of her husband's consortium.

Included as a ground in the motion of Cedar Rapids to dismiss divisions 1 and 2 is the claim of governmental immunity. The City asserts matters urged in those divisions show on their face the doctrine of governmental immunity is applicable to all allegations and acts by which plaintiffs seek to impose liability on Cedar Rapids.

The trial court found the action of the municipality in making certain repairs and improvements to its sewage disposal plant was governmental in nature and sustained the City's motion on the grounds of governmental immunity.

Plaintiffs having failed to amend divisions 1 and 2 or file further pleadings involving Cedar Rapids within seven days after delivery of the trial court's ruling thereby elected to stand on the record. Rule 86, Rules of Civil Procedure.

Dory Builders filed answer and plaintiffs' action against that company remains pending.

Within 30 days from the entry of the ruling plaintiffs filed notice of appeal to this court as a matter of right and did not obtain permission to appeal as required by rule 332, R.C.P., governing interlocutory appeals.

I. Cedar Rapids filed a motion to dismiss plaintiffs' appeal on the theory the dismissal of divisions 1 and 2 of the petition was not a final order and adjudication and had not disposed of the subject matter of the litigation as relates to all parties. The City emphasizes the fact plaintiffs had not obtained leave to appeal under rule 332, R.C.P. This court ordered the motion submitted with the appeal.

The City argues in support for dismissal of the appeal that dismissal of one party defendant is not a final decision for purposes of appeal when other issues and parties still remain in litigation. It contends to permit plaintiffs' appeal at this stage would have the effect of giving two rights of appeal on the same question since under the decision in Reuter v. City of Oskaloosa, 253 Iowa 768, 113 N.W.2d 716, a party who has suffered an adverse ruling on a motion to dismiss one of two or more opposing parties to the lawsuit may on appeal from the final judgment assign as error any interlocutory ruling or final adjudication in the trial court under rule 86.

In Reuter, 253 Iowa at 772--773, 113 N.W.2d at 719, after stating that the general policy of the law is against piecemeal appeals, we approved the general rule stated in an annotation in 114 A.L.R. 759, '* * * that an order or decree which dismisses an action as to a part only of the defendants, All of whom are charged to be jointly liable and the interests of all of whom are identical and not severable, is not a final judgment from which appeal or writ of error will lie while the case remains undisposed of in the lower court as to other defendants.' (Emphasis supplied.)

Reference is also made in Reuter to this statement in 4 C.J.S. Appeal & Error § 104, 'as a general rule, an appeal or writ of error will not lie unless there has been a final disposition of the case, not only as to all of the issues, * * * but also as to all of the parties to the suit, * * *. (I)t has been held that a judgment or decree dismissing the action or bill as to less than all of two or more defendants, or a nonsuit as to one of several defendants, is not final so as to permit as appeal.'

This statement in 2 Am.Jur., Appeal and Error, section 27 is also set out: 'As a general rule, a judgment or decree is not final which settles the cause as to a part only of the defendants.' Similar statements now appear in 4 Am.Jur.2d, Appeal and Error, sections 54, 55, 56 and 106.

We call attention to the fact that in Reuter plaintiff's petition consisted of two divisions. In the first plaintiff alleged negligence against both defendants as to the slippery and unsafe condition of the sidewalk and in the other division he alleged defendants were negligent in permitting a ramp to extend from one defendant's building onto the sidewalk. In other words, although the petition in Reuter consisted of two divisions and there were two defendants named, the pleaded ground of negligence was against both defendants. This is not the factual situation presented by the pleadings in the case before us.

In resistance plaintiffs maintain their appeal may be taken as a matter of right since it is not interlocutory in nature but from a final adjudication. They argue that when the trial court sustained the motion of Cedar Rapids to dismiss divisions 1 and 2 no issue remained to be decided as to defendant City when no further pleading was done by plaintiffs involving Cedar Rapids.

Plaintiffs cite rules 86 and 331, R.C.P., among the authorities relied on in support of their position. We set out the pertinent parts of these rules. Rule 86: 'If a party is required or permitted to plead further by an order or ruling, the clerk shall forthwith mail or deliver notice of such order or ruling to the attorneys of record. * * * Unless otherwise provided by order or ruling, such party shall file such further pleading within seven days after such mailing or delivery; and if such party fails to do so within such time, he thereby elects to stand on the record theretofore made. On such election, the ruling shall be deemed a final adjudication in the trial court without further judgment or order; reserving only such issues, if any, which remain undisposed of by such ruling and election.' Rule 331: '(a) All final judgments and decisions of courts of record, and any final adjudication in the trial court under rule 86 involving the merits or materially affecting the final decision, may be appealed to the supreme court, except as provided in this rule and in rule 333. * * * ' (b) No interlocutory ruling or decision may be appealed, except as provided in rule 332, until after the final judgment or order. No error in such interlocutory ruling or decision is waived by pleading over, or proceeding to trial. On appeal from the final judgment, there may be assigned as error such interlocutory ruling or decision or any final adjudication in the trial court under rule 86 from which no appeal has been taken, where such ruling, decision, or final adjudication is shown to have substantially affected the rights of the complaining party.'

We have said by failing to plead over within the time permitted by rule 86 after trial court entered order sustaining defendant's motion to dismiss, plaintiffs elected to stand on the record and, therefore, the order became a final adjudication. Gradischnig v. Polk County, 164 N.W.2d 104, 105 (Iowa 1969); Hosfelt v. Lacey, 160 N.W.2d 519, 520 (Iowa 1968).

However, the 'final adjudication' referred to in this statement construing the rule has reference to a final adjudication in the trial court, not in the appellate court. In Goldstein v. Brandmeyer, 243 Iowa 679, 684--685, 53 N.W.2d 268, 271, ...