Ruby v. Easton

• Decision Date: 25 April 1973
• Docket Number: No. 55483,55483
• Citation: 207 N.W.2d 10
• Parties: Kim RUBY, a minor, by Eugene Ruby, his next friend, and Eugene Ruby, Appellants, v. Monte R. EASTON, Appellee.
• Court: Iowa Supreme Court

Page 10

207 N.W.2d 10

Kim RUBY, a minor, by Eugene Ruby, his next friend, and Eugene Ruby, Appellants, v. Monte R. EASTON, Appellee.

No. 55483.

Supreme Court of Iowa.

April 25, 1973.

Joe Cosgrove, Sioux City, for appellants.

Paul J. Yaneff, Sioux City, for appellee.

Heard before MOORE, C.J., and MASON, LeGRAND, UHLENHOPP, and McCORMICK, JJ.

McCORMICK, Justice.

Plaintiffs appeal from trial court's order sustaining generally defendant's eight-part motion for directed verdict in this motor vehicle personal injury case. We reverse and remand because of trial court's failure to rule separately on each ground of the motion as required by rule 118, Rules of Civil Procedure.

This case arose from an automobile-pedestrian accident which occurred in Sioux City at about 7:30 p.m. December 14 1966. Plaintiff Kim Ruby was then 15 years old. He received injuries when struck by a car driven by defendant Monte R. Easton on Floyd Boulevard near its intersection with highway 75 in the north part of Sioux City.

The petition was in two divisions. In the first Kim sought recovery for his injuries and in the second his father Eugene asked damages for medical expenses and loss of his son's services. Plaintiffs alleged seven specifications of defendant's negligence, one of which was stricken on defendant's motion before trial. In his answer defendant relied on a general denial, a claim of legal excuse based on sudden emergency, and an affirmative defense of contributory negligence. Plaintiffs' motion to require defendant to make specific his general allegation of Kim's negligence was overruled. Plaintiffs' reply was a general denial.

I. The ruling on motion for directed verdict. At the conclusion of plaintiffs' case-in-chief defendant moved for directed verdict on the following grounds:

'1. That the plaintiff has failed to prove by the material and competent evidence the cause of action pleaded in the plaintiffs' petition.

2. That the plaintiffs' evidence presents no question of fact, and no issue of fact which can be passed upon by the jury.

3. That the plaintiff has failed to prove by material and competent evidence that the negligence of the defendant, if any, was the proximate cause of the accident and injury of which the plaintiff complains.

4. That the plaintiff has failed to prove by material and competent evidence that the defendant was negligent, and that said negligence was the proximate cause of the accident and injury complained of by the plaintiff.

5. That the evidence conclusively shows that the plaintiff, Kim Ruby, was negligent, and that said plaintiff's negligence was the proximate cause of the injury and damage complained of.

6. That the evidence conclusively shows that the plaintiff was crossing a roadway at a point other than within a marked crosswalk, or within an unmarked crosswalk and an intersection, and failed to yield the right of way to the vehicle being operated by the defendant, as required by Section 321.328 of the Iowa Code.

7. That said negligence in failing to yield the right of way to the defendant driver was a proximate cause of the accident and injury of which the plaintiff complains, as a matter of law.

8. That if a verdict is rendered for the plaintiff by the jury, it would be the duty of the court to set such verdict aside.'

Trial court reserved ruling. When the motion was renewed after defendant's evidence trial court entered the following ruling:

'After hearing the evidence in this case and the examination of the pleadings and records, the court is of the opinion that the motion for directed verdict should be and is sustained, and the jury is instructed to return a verdict for the defendant.'

Plaintiffs assign as error the failure of trial court to rule separately on each ground of the motion.

Rule 118, R.C.P., provides:

'Specific rulings required. A motion or other matter involving separate grounds or parts, shall be disposed of by separate ruling on each and not sustained generally.'

Rule 118 has been in the rules since they were adopted in 1943. In discussing it, the advisory committee said:

'This is new. There is much confusion as to the right of a party to specific rulings. Under the doctrine that a general ruling sustaining a motion is deemed to sustain every ground, no matter how absurd, it is necessary in review of such rulings to argue every ground, even those the judge never actually thought were good. Both the appellate court and the parties should be entitled to know what grounds are upheld, thus shortening the later phases of the matter. No one is harmed by this.' 2 Iowa Rules Civil Procedure Annot. (Third Ed.1970).

Our research has revealed the mandate of rule 118 has been called to the attention of the bench and bar in opinions of this court at least 25 times since its adoption. Justice Hays, writing in Melsha v. Tribune Pub. Co. of Cedar Rapids, 243 Iowa 350, 355, 51 N.W.2d 425, 428 (1952), expressed his personal view that failure to observe the rule 'should ordinarily be held to constitute reversible error.' He added:

'Under such a view, the successful party in the trial court, if he would protect the fruits of his victory in the event of an appeal, would see to it that such rule was complied with, or make an effort to such effect. There is an old saying 'a word to the wise is sufficient."

This admonition did not appear to be sufficient. In Bourjaily v. Johnson County, 167 N.W.2d 630, 632 (Iowa 1969), the court observed:

'We have as yet refrained from predicating reversible error solely on the basis of the trial court's disregard of rule 118, at least in the absence of some compelling cause to hold otherwise. Nevertheless, we have repeatedly stated we much prefer specific rulings on each and every ground of a motion. (citations)

'Meaningful compliance with rule 118 greatly facilitates appellate procedure in that counsel are apprised of the precise grounds of the adverse ruling and are thereby enabled to properly and narrowly limit their arguments on appeal to the actual grounds responsible for the court's ruling. The ever increasing volume of appeals renders it imperative the rule be followed.'

Finally in our last confrontation with a violation of the rule, in Greenwell v. Meredith Corporation, 189 N.W.2d 901, 904 (Iowa 1971) filed September 9, 1971, we said:

'While we have declined to reverse in any case for the trial court's noncompliance with rule 118, R.C.P., we shall henceforth insist that the rule be strictly complied with to avoid necessity of appellants arguing each and every ground of a motion to direct a verdict, and shall require trial courts to make clear to parties and to this court what grounds of motion were sustained so that arguments on appeal can be confined and limited thereto.'

The present case was tried after our Greenwell decision.

In resisting reversal, defendant argues plaintiffs did not ask for separate rulings on each ground of the motion and therefore cannot complain here. No authority is cited. We perceive no basis to make the mandate of rule 118 dependent upon a request by the losing party. The rule requires a trial court to use a rifle rather than a shotgun in ruling on motions involving separate grounds. The object is to narrow the issues for appeal. This is intended to save time, work and expense not only for the appellant but for this court as well. We cannot afford the luxury of reviewing grounds which may in fact not be responsible for a trial court's ruling.

In accordance with the policy enunciated in Greenwell, this case will be reversed because of trial court's noncompliance with rule 118. The nature and scope of our review in this case and of our mandate on remand must next be decided.

If we were to reverse for noncompliance with rule 118 and nevertheless pass on the merits of each ground of the motion for directed verdict we would frustrate the policy requiring reversal. We would be assuming the additional burden the rule is intended to prevent. In addition, if merit was found in any ground of the motion, reversal and remand for new trial would only serve to punish the victor without accomplishing anything else. If no merit was found in any ground, we would have reversed and remanded for new trial in any event and our policy of reversing for noncompliance with rule 118 would be meaningless.

We therefore adopt a position which ought to effectuate our policy without imposing an unreasonable burden on anyone. Cases involving violation of rule 118 will ordinarily be reversed. Proceedings upon remand will be a matter for determination in each case. In making that determination we will not usually pass on the merits of each ground of the motion. We will instead review the record as necessary to decide the scope of our mandate on remand. Where it seems proper we will exercise our discretion to remand for compliance with rule 118 rather than new trial. However, in the present case our review of the record persuades us new trial should be ordered. Therefore, although we will not pass on each ground of the motion for directed verdict, we will discuss several of the key problems raised in the parties' briefs which are likely to recur upon retrial.

II. Defendant's negligence. We will review two specifications of defendant's negligence which have been fully argued by the parties. The first concerns plaintiffs' specification defendant was negligent in failing to warn plaintiff Kim Ruby by sounding his horn prior to the accident. The second is their assertion of his negligence in failing to maintain a proper lookout.

Three principles so well established they do not require citation of authority are applicable: (1) the evidence is viewed in its light most favorable to the party against whom the verdict was directed; (2) generally questions of negligence, contributory negligence and proximate cause are for the jury and may be decided as matters of law only in exceptional cases; (3) a jury question is engendered even where...