Pierce v. Gruben
| Decision Date | 05 March 1946 |
| Docket Number | 46750. |
| Citation | 21 N.W.2d 881,237 Iowa 329 |
| Parties | PIERCE v. GRUBEN et al. |
| Court | Iowa Supreme Court |
R. Eldon Laird, of Waverly, for appellants.
Swisher Cohrt & Gillilland, of Waterloo, and Oliver J. Reeve, of Waverly, for appellee.
Plaintiff's petition was in two counts. Count one contained nine separate grounds of negligence, some of which were specific in their designation of the negligence, and some of the grounds were merely general allegations of negligence. However, in submitting count one to the jury, the court eliminated all specific grounds of negligence, and submitted the count, in substance as follows: Under an oral contract defendants agreed to erect a tombstone upon the cemetery lot of her parents, and did so, and when plaintiff placed her hand on it while inspecting it, the stone fell upon her and she was injured as a result of the defendants' negligence in the following particulars:
'1. In failing to use due care, skill and workmanship in the original setting of the stone.
Count two of the petition was submitted by the court, in substance, as follows: After the tombstone was erected it became loose from its foundation, and this fact was called to the attention of defendants on June 30, 1941, and defendants then agreed to repair and reset said stone, immediately; that between said date and September 12, 1941, the defendants did so undertake and did repair and reset said stone; 'that the plaintiff possessed no knowledge as to the skill or care required in the repair and resetting of said stone but relied wholly upon the knowledge, skill and experience of the defendants; that the defendants reset said stone in such a careless and negligent manner that it fell upon the plaintiff when she placed her hand upon the same while inspecting it during a visit to the grave of her parents on or about September 12 1941, thereby causing the injuries * * *.'
In the submission of each count the court set out the items of damages and the amount claimed on each in the total amount of $15,000.
For answer the defendants admitted that plaintiff was injured by the tombstone falling upon her, but denied that she was injured in the manner alleged, and denied generally all other allegations of counts one and two. Defendants also alleged that plaintiff knowing the state of repair of the tombstone on September 12, 1941, and appreciating the danger, in placing herself in such proximity thereto and pushing the same voluntarily, assumed the risk of the conditions and the negligence of defendants.
I. Plaintiff moved to strike the allegations in the answer pleading assumption of risk. The motion was overruled. However, the court failed to submit this pleaded issue to the jury. There was ample testimony tending to sustain this allegation, and it was error for the court not to submit it, but in view of our disposal of the case the error is of no consequence, and will not be further discussed.
II. While the allegations in both counts one and two are all general allegations, and ground two of count one is in substance and effect the same as the general ground alleged in count two the court, by instruction 7, makes the rule of res ipsa loquitur apply only to count two.
The court submitted to the jury three forms of verdict and instructed them to use the one which conformed to their finding. The first form was for their finding on count one of the petition; the second form was for their finding on count two; and form three was to be used if they found for the defendants. The jury found nothing for the plaintiff on count one of the petition, but found damages for the plaintiff in the sum of $3000 on count two.
In instruction 11 the jury were told by the court that they could not find for plaintiff on both counts one and two of the petition as shown in instructions 1 and 2.
The jury was right in finding the plaintiff was not entitled to recover any damages under count one as there was no evidence whatsoever of any negligence on the part of the defendants in the setting of the stone in October, 1935. Neither was there any evidence to support a recovery under ground two of count one. Division I of defendants' motion to direct a verdict in their behalf on count one should have been sustained, and the court erred in not doing so.
III. In Division II of defendants' motion to direct a verdict in their behalf they alleged as grounds therefor that plaintiff had failed to sustain the cause of action alleged in count two because, first, the evidence was insufficient to establish that defendants had repaired or reset the monument as alleged in said count two, and, second, the plaintiff had wholly failed to prove that defendants had the exclusive management and control of the monument or the fall thereof at the time of her injury on September 12, 1941, and wholly failed to establish by competent evidence the facts necessary for the application of the rule of res ipsa loquitur relied upon in said count two.
With respect to the repairing and resetting of the stone as alleged in count two of the petition, the defendants alleged and supported the allegation with evidence, that they had never repaired or reset the stone prior to the injury; because after a careful examination of the stone in the latter part of August, 1941, they had found it setting perfectly erect, plumb and firm upon its foundation, and wholly without need of repair or resetting.
As these defenses in the answer are largely factual it is necessary to set out sufficient of the relevant and material evidence bearing upon those issues. As noted above the allegation of negligence in count one respecting the original setting of the stone was merely a general allegation that defendants were negligent in that matter. There was no evidence in support of it. While opposed to it there was testimony from both sides given by expert witnesses of long experience in the erection of monuments in cemeteries that the Pierce stone was erected and set with due and proper care, skill and workmanship, in accord with the best practices and generally used methods in that line of work. There was no controversy on the issue. We will give no further attention to the original setting of the stone except as the evidence respecting it may bear upon count two and defendants' answer thereto. The circumstances and conditions existing prior to the alleged resetting are so connected with the latter issue and with the defenses, and with the plaintiff's relation to the monument transaction as a whole, that reference to the earlier matters is necessary.
The stone was a granite slab 26 inches wide at the base and 8 inches thick. It gradually narrowed and was about 21 inches wide at the top, which was rounded somewhat and was thirty-four and one-half inches high at the highest point. It weighed between 720 and 750 pounds. The cemetery in which it stood was owned by the city of Waverly. The city constructed the cement foundation for the stone, as it did for all tombstones erected in the cemetery. There was no defect in the foundation. Its upper surface was level and smooth. Its dimensions were but slightly in excess of those of the base of the stone. The upper surface of the foundation was about level with, or just below the surface of the ground about it. The foundation was constructed September 30, 1935, and the stone was erected early in October following. The defendant, Merle F. Gruben, who had over 20 years experience in the setting of monuments in cemeteries, erected this one. Plaintiff conceded that good materials were used in setting the stone upon the foundation and making the cement joint which sealed them together. The stone was then plumbed and leveled and the cement joint was pointed and formed a complete seal around the outside edges of the space between the stone and the foundation. The cement would completely set in about six hours and would reach its maximum tensile strength in about twenty-eight days. Mr. Gruben testified that when he completed the erection and the setting of the stone, it stood on a good bed of cement, perfectly upright, level, firm and solid on its foundation. The defendants' contract was then completely performed. There was never any arrangement or contract between the defendants and the plaintiff or her family that defendants were to have any supervision, care or control over the stone after its erection. Neither is there any evidence that they did any of these things. Merle F. Gruben testified that the defendants did no work on or about the stone from the time they erected it until, at the request of the city, they set up the stone after it fell upon plaintiff.
There was corroboration of the testimony of Gruben with respect to the way in which he testified that he had erected the stone. Mr Lane, the superintendent of the cemetery, had been engaged in cemetery work all of his life. He had been superintendent of this cemetery since 1927. He had general supervision of all work in the cemetery, superintending all burials and the construction of all foundations for monuments. He had knowledge of the methods and manner of setting monuments and had much experience in that work. He was familiar with the Pierce lot and tombstone. He had occasion many times in recent years to observe the Pierce stone prior to September 12, 1941. It was in a plumb, upright position and solid on its foundation at all times so far as he observed. He saw all monuments in the cemetery every few days, and there were approximately 3500 of them in the cemetery in 1941. It was open to the public at all times. He arranged for the burial of plaintiff's mother in December, 1938. Her grave...
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