Soike v. Evan Matthews and Co., 64656

• Citation: 302 N.W.2d 841
• Decision Date: 18 March 1981
• Docket Number: No. 64656,64656
• Parties: Lowell SOIKE and Karen Soike, Appellees, v. EVAN MATTHEWS AND COMPANY, Appellant.
• Court: United States State Supreme Court of Iowa

Page 841

302 N.W.2d 841

Lowell SOIKE and Karen Soike, Appellees, v. EVAN MATTHEWS AND COMPANY, Appellant.

No. 64656.

Supreme Court of Iowa.

March 18, 1981.

Dell A. Richard of Oehler, Radig, Muller & Richard, P. C., Iowa City, for appellant.

Patricia C. Kamath, Iowa City, for appellees.

Considered by REYNOLDSON, C. J., and LeGRAND, UHLENHOPP, McGIVERIN and LARSON, JJ.

LARSON, Justice.

Lowell and Karen Soike retained Evan Matthews and Company to do cement work for their new house. When it appeared the house has been "staked" too low in relation to the street, the Soikes sued the contractor. While the petition and pretrial orders referred to duties arising out of the contract, the jury was also instructed on the theory of negligence. Matthews complains on appeal that it was error for the trial court to instruct the jury on negligence arising out of the performance of the contract because (1) the "staking" of the house was voluntarily assumed, and independent of its duties arising under the contract, and (2) submission of that issue was outside the scope of issues framed by the plaintiff's petition and the court's pretrial orders, which referred only to duties arising out of the contract. Matthews also contends the question whether a duty of care was owed by it in connection with the staking of the house was a question of law for the court, and that the court erred in submitting it to the jury. We conclude the issue of negligence in staking the house was properly submitted under the record of the case, and that it did not constitute an impermissible shifting to the jury of the decision on the existence of a legal duty. We affirm the trial court.

The facts bearing on these issues are virtually undisputed. Matthews, a cement contractor, was low bidder on a project to pour the foundation and concrete flatwork on the home. The written contract which followed did not deal with the responsibility to set the elevation of the house; however, Matthews voluntarily assumed this responsibility. Matthews concedes on appeal that as a result of negligence in surveying the lot the foundation was built too low in relationship to the street. It contends the negligence, however, was that of the Soikes, whose directions were merely carried out by Matthews.

I. Matthews first contends that any negligence in surveying was improperly submitted "when plaintiffs at all times maintained that the action was founded on contract alone." However, the petition referred to an attached, written contract for the concrete work and to Matthew's assumption of the surveying responsibilities. It alleged negligence as to the surveying because it was "not done with proper regard for the topography of the lot, resulting in the basement being dug too low." Pointing to the contents of the petition, Matthews contends it was clearly based upon negligence in performing the contract, not upon a claim arising outside the contract by the voluntary assumption of a duty. It concludes that the petition, as framed, misled the company in the preparation of its defense. Matthews also points to the plaintiffs' pretrial statement of issues, (Iowa R.Civ.P. 136(b)(5)), referring to "the contract relied upon" and "the specific breach of contract," as well as the wording of the court's final pretrial order identifying the issue as a "(b)reach of construction contract and duties thereunder" (emphasis added) to support its claim that it was misled about the nature of the case. Matthews contends that the petition and pretrial order would permit a verdict for breach of contract and maybe one for negligence in the performance of contractual duties, but certainly not one for negligence in performing duties arising outside of the contract. This narrow view of the scope of the issues, however, is not supported by an examination of the petition and pretrial proceedings, and is inconsistent with our rule of "notice" pleading.

We note, first, that the petition could reasonably be construed to allege both a claim under contract and a parallel duty of due care in respect to the surveying. Following allegations concerning the concrete work which was to be performed under the contract, the petition alleged Matthews' assumption of the surveying responsibilities and its negligence in performing them. Second, and more significantly, the petition was not required to identify a specific legal theory; it is sufficient if the prima facie elements of a claim are stated, and this statement is "fair notice" to the defendant. Lamantia v. Sojka, 298 N.W.2d 245, 247 (Iowa 1980). Under such "notice pleading," Iowa R.Civ.P. 69(a), it is sufficient if the petition apprises a defendant of the incident giving rise to the claim and of the general nature of the action. Id. The petition here was sufficient to apprise the defendant of the facts out of which the claim arose and of the general nature of the action, i. e., a claim for negligent placement of the house. To require the plaintiffs to go further and identify the specific legal theory underlying the claim would be inconsistent with the notice pleading concept in rule 69(a), requiring only "a short and plain statement of the claim showing that the pleader is entitled to relief." See Lamantia v. Sojka, 298 N.W.2d at 247; 5 C. Wright & A. Miller, Federal Practice & Procedure § 1202, at 59-66 (1969).

There is an added dimension in this case: the trial court's pretrial order arguably gave the impression the action was one for contract violations, not for breach of a separate duty. Matthews contends that the order, in effect, excised the claim of negligence in surveying...