Walker Shoe Store, Inc. v. Howard's Hobby Shop, 67361

• Decision Date: 22 December 1982
• Docket Number: No. 67361,67361
• Parties: WALKER SHOE STORE, INC., Appellee, v. HOWARD'S HOBBY SHOP, Appellant.
• Court: Iowa Supreme Court

Page 725

327 N.W.2d 725

WALKER SHOE STORE, INC., Appellee, v. HOWARD'S HOBBY SHOP, Appellant.

No. 67361.

Supreme Court of Iowa.

Dec. 22, 1982.

James E. Walsh, Jr., and Timothy W. Hamann of Clark, Butler & Walsh, Waterloo, for appellant.

John R. Walker of Beecher, Beecher, Holmes & Rathert, Waterloo, for appellee.

Considered by LeGRAND, P.J., and UHLENHOPP, HARRIS, McGIVERIN and CARTER, JJ.

LeGRAND, Justice.

This is an appeal from summary judgment in favor of plaintiff in the amount of $25,074.45 for damage resulting from a fire which originated on defendant's premises and spread to plaintiff's property. We reverse and remand for trial on the factual issues raised by the pleadings.

Plaintiff owns and operates a shoe store under the name of Walker Shoe Store, Inc. Defendant owns and operates Howard's Hobby Shop. The two properties adjoin each other. Defendant heats his property with oil, which is stored in his basement in two tanks having a total capacity of five-hundred-fifty gallons. A leak developed in one or both of the tanks, allowing oil to escape in the basement of defendant's property. Eventually the oil was ignited from the pilot light of a hot water heater. The ensuing fire caused substantial smoke and fire damage to plaintiff's property. The trial court sustained plaintiff's motion for summary judgment and fixed the damages at $25,074.45.

The plaintiff's petition was in three counts. The first count alleged negligence; the second was based upon the doctrine of res ipsa loquitur; and the third asserted a claim under "the strict liability doctrine of Lubin v. City of Iowa City, [257 Iowa 383, 131 N.W.2d 765 (1964) ]".

The summary judgment ruling was entered on count III of the petition and was based squarely on the rationale of the Lubin case. Before reaching the decisive question concerning the applicability of Lubin, we discuss several preliminary issues which affect the decision reached by the trial court as well as our own conclusion.

I. Motion to Dismiss.

Defendant filed an answer to counts I and II and a motion to dismiss count III, all as part of the same instrument. Relying principally on the case of Poole v. Putensen, 274 N.W.2d 277, 279 (Iowa 1979), the trial court held that the motion was not timely because it was not filed before answer. See Iowa R.Civ.P. 85(a).

Defendant argues that Poole was a one-count petition and should not control when a petition contains, as it does here, multiple counts, each of which asserts a separate claim. From this he concludes his answer to counts I and II while simultaneously moving to dismiss count III does not violate rule 85(a).

This argument has considerable appeal, but we find nothing in the rule to support it. The petition, although in three counts, is a single pleading under Iowa R.Civ.P. 68. Motions attacking a pleading must be served before "responding to [the] pleading." Defendant did not comply with rule 85(a), and the trial court was correct in denying his motion as untimely.

II. Adjudication of Law Points.

Defendant's next tactic was to file an application under Iowa Rule of Civil Procedure 105 asking an adjudication of law points concerning count III. His motion asked the court to decide as a matter of law that count III does not state a cause of action under the Lubin doctrine. He concedes this was done to present the same issue he had unsuccessfully raised in the motion to dismiss.

The sole function of an application under Rule 105 is to decide issues of law raised by the pleadings. We believe the trial court was right in denying defendant's application. Our reasons for this view are apparent from our discussion in division III.

III. Summary Judgment.

After the trial court denied defendant's application for a Rule 105 adjudication, the plaintiff filed a motion for summary judgment, which the trial court sustained. We set out the background against which this ruling was made.

Count III of plaintiff's petition alleged that defendant stored large amounts of highly flammable fuel oil in tanks on his property; that the tanks were located close to plaintiff's property; and that some of the fuel oil leaked from the storage tanks and accumulated in the basement of defendant's property, ultimately igniting and causing fire and smoke damage to plaintiff's property. The petition stated that the plaintiff "intends to rely on the theory of strict liability as enunciated in the case of Lubin v. The City of Iowa City, [257 Iowa 383, 131 N.W.2d 765 (1964) ]."

By answer, defendant admitted he kept large amounts of highly flammable fuel oil on his property; that some of it leaked from the tanks in which it was confined; that a fire resulted; and that the fire caused damage to plaintiff's property. Defendant denied the Lubin doctrine of strict liability was applicable under the facts alleged by plaintiff.

In resisting the motion for summary judgment, defendant filed an affidavit stating among other facts the following: he owns the premises in question; they are heated by fuel oil; he maintains two storage tanks with a total capacity of five-hundred-and-fifty gallons; the tanks were "routinely filled by the oil vendor, sometime during the spring of 1978"; after the fire there remained four-hundred-and-sixty-five gallons of oil in the tanks; oil leaked from one or both of the tanks; and the cause of the fire, according to the fire department's report, was "leaking fuel oil on top of accumulated water ignited by pilot light of water heater"; at the time he purchased the building in 1977, the heating system was inspected by Grange Heating Company and certain repairs were made to it; he had all parts of the heating system checked regularly by qualified people; and he had no knowledge that the tanks were inadequate or unsafe prior to the fire.

Plaintiff filed no counter affidavit, and no evidence was taken at the hearing. The ruling was made on the state of the pleadings and de...