Nelson v. Wolfgram

• Decision Date: 13 January 1970
• Docket Number: No. 53704,53704
• Citation: 173 N.W.2d 571
• Parties: Clarence A. NELSON, Appellant, v. Dr. M. D. WOLFGRAM, Appellee.
• Court: Iowa Supreme Court

Page 571

173 N.W.2d 571

Clarence A. NELSON, Appellant, v. Dr. M. D. WOLFGRAM, Appellee.

No. 53704.

Supreme Court of Iowa.

Jan. 13, 1970.

Hunt & Degnan, Guttenberg, for appellant.

Swift & Swift, Manchester, for appellee.

MOORE, Chief Justice.

Defendant's motion to dismiss plaintiff's petition claiming damages for malpractice was sustained by the trial court on grounds it failed to state a cause of action. Plaintiff elected to stand on the pleadings and appealed. We reverse.

Plaintiff's petition alleges the identity of the parties, his freedom from contributory negligence, resulting disability, damages and includes these paragraphs which are pertinent here:

'3. That on the 18th day of December, 1966, plaintiff went to the office of the defendant's chiropractic office in Guttenberg, Iowa, to be examined for a tired back.

'4. That the defendant on the 18th day of December 1966, examined the plaintiff and told the plaintiff that the feeling of a tired back was caused by a tipped pelvis and that he could correct it, for the plaintiff, with chiropractic treatments.

'5. That following the examination of the plaintiff by the defendant on the 18th day of December, 1966, the defendant took X-rays of plaintiff and began a series of treatments. That the treatments were painful and hurt the plaintiff.

'6. That on the 22nd day of December, 1966, the defendant administered a third treatment to the plaintiff, extending and arching his back, which was accompanied by sudden, severe pain, causing his entire right side to become numb and the pain caused a spasm in his buttocks and down his leg and a hot painful sensation in the heel of his foot.

'7. That the diagnosis, examination and treatment done by the defendant was negligently done and the direct and proximate cause of the injuries complained of by the plaintiff.

'8. That because of the injuries incurred at the office of the defendant, the plaintiff was hospitalized and had medical and therapeutic expense in the past and will continue to have such expense in the future.

'9. That during the manipulations performed by the defendant, chiropractor, the back of the plaintiff was negligently placed in sudden extension and arching.

'10. That the manipulations by the defendant chiropractor were painful and aggravating and negligently performed upon the plaintiff.

'11. That as a proximate result of the negligence of the defendant, the plaintiff incurred a ruptured intervertebral disk in the lumbar spine with pressure on the nerve roots leading to the leg.'

Defendant attacked plaintiff's petition by a motion to dismiss, to strike certain parts thereof and for more specific statement. We are here only concerned with the court's order sustaining the motion to dismiss. In view thereof the court stated no ruling was necessary on the other motions. Our ruling will require action thereon.

Defendant's motion to dismiss states: 'Defendant moves to dismiss the Petition of plaintiff because the facts stated therein fail to show that plaintiff is entitled to any relief against this defendant because:

'1. The petition states no facts as distinct from conclusions, which show that defendant was guilty of any negligence as it attempts to claim, though said petition repeatedly states that defendant performed negligently, but states no facts to warrant such conclusions; it does not set forth any facts stating what defendant did or did not do in his treatment of plaintiff, but shows that he did not use the same degree of knowledge, care, skill, and attention ordinarily exercised by chiropractors under like circumstances and in like localities; that nowhere does said Petition set forth any facts from which a conclusion could be drawn that defendant was negligent in any manner in his treatment of plaintiff, not what he did or did not do that constitutes negligence in his care and treatment of plaintiff. Since the petition pleads no facts as required by R.C.P. 70, the mere unsupported conclusion of negligence states no claim.

'2. That said petition claims only of general negligence and states only conclusions of negligence and fails to specify any claimed acts of negligence on the part of the defendant which proximately caused the injury and damage referred to in said petition by plaintiff.

'3. That said petition fails to set forth any facts which show that the treatment referred to in plaintiff's petition was in any way performed negligently or that there was any negligent treatment or lack of treatment on the part of the defendant of the plaintiff, the mere fact of defendant claiming to be injured as a result of treatment by the plaintiff is not sufficient without allegations of facts showing in what way said treatment was negligent, since said claimed injuries and damages could result from non negligent treatment.

'4. That said petition fails to show any facts showing the specific cause of the claimed injury and claimed resulting damages.'

The trial court found plaintiff's petition 'fails to state a cause of action against the defendant' and sustained defendant's motion to dismiss. The court's findings include: 'Plaintiff's petition alleges little more than a course of treatment undertaken by defendant, that plaintiff suffered pain, that he has since suffered disability, and seems to allege that the pain and disability were negligently caused by defendant. There is no allegation of facts establishing a duty and the breach thereof by the defendant.'

I. It is now well established that where a doubtful pleading is directly attacked by motion before issue or in the answer as permitted by rule 72, Rules of Civil Procedure, it will be resolved against the pleader. This rule is qualified, however, by the additional provision that if the petition does allege ultimate facts upon which plaintiff might recover and states a claim under which evidence may be introduced in support thereof, the petition should be construed in the light most favorable to the plaintiff with doubts resolved in his favor and the allegations accepted as true. Hagenson v. United Telephone Company, Iowa, 164 N.W.2d 853, 855; Appling v. Stuck, Iowa, 164 N.W.2d 810, 812; Anthes v. Anthes, 255 Iowa 497, 503, 122 N.W.2d 255, 258.

II. A motion to dismiss is limited to failure to state any claim on which Any relief can be granted. Rule 104(b), R.C.P.; Newton v. City of Grundy Center, 246 Iowa 916, 920, 70 N.W.2d 162, 164, and citations.

If in view of what is alleged, it reasonably can be conceived plaintiff can upon the trial make a case which would entitle him to some relief, the petition should not be dismissed. Lagerpusch v. Lindley, 253 Iowa 1033, 1037, 115 N.W.2d 207, 209; Newton v. City of Grundy Center, supra.

Defendant argues the petition only alleges negligence as a conclusion which is not admitted when his motion to dismiss is considered. As we understand plaintiff's position it is that his pleadings sufficiently allege ultimate facts and therefore state a cause of action. Plaintiff makes no contention he relies on the doctrine of res ipsa loquitur. The question may be pinpointed to a determination of whether pleading the doctor negligently performed manipulations or negligently placed plaintiff in sudden extension and arching were pleadings of conclusions or ultimate facts. Counsel has not cited nor has our research revealed a case in which we have squarely decided the question.

In Anthes v. Anthes, supra, a farm accident case, plaintiff pleaded the fact of being...