Weber v. Madison

• Decision Date: 16 March 1977
• Docket Number: No. 2-57893,2-57893
• Parties: Marilyn Mae WEBER and Wayne Weber, wife and husband, Appellants, v. Nicholas Clark MADISON, Jr., as Executor of the Estate of Stanton W. Madison, Deceased, Appellee.
• Court: Iowa Supreme Court

Page 523

251 N.W.2d 523

Marilyn Mae WEBER and Wayne Weber, wife and husband, Appellants, v. Nicholas Clark MADISON, Jr., as Executor of the Estate of Stanton W. Madison, Deceased, Appellee.

No. 2-57893.

Supreme Court of Iowa.

March 16, 1977.

Edward J. Gallagher, Jr., of Keith, Gallagher, Lybbert, Martin & Burk, Waterloo, for appellants.

Donald L. Hoeger, of Greif, Klotzbach & Hoeger, Independence, for appellee.

Submitted to MOORE, C. J., and MASON, REYNOLDSON, HARRIS and McCORMICK, JJ.

REYNOLDSON, Justice.

This appeal requires us to examine the status of geese as "free commoners", a subject this court last considered 63 years ago.

The petition alleges plaintiff Marilyn Mae Weber was driving an auto on a gravel road in Buchanan County. As she was coming out of a curve a flock of "large geese" owned by defendant's decedent came upon the highway. Attempting to avoid collision with the geese, she went into a roadside ditch and was severely injured. Plaintiff Wayne Weber, husband of the plaintiff driver, brings action for loss of consortium in a separate division. References to plaintiff in the balance of this opinion will be to the driver.

Plaintiff's petition alleged the owner of the geese negligently failed to restrain the flock in violation of his common-law duty to do so, negligently allowed the flock to be upon the graveled road, negligently failed to warn those using the road, including plaintiff, of the presence of the geese on the road, and negligently failed to restrain the geese in violation of § 188.2, The Code, 1973.

Defendant's motion to dismiss asserted there was no legal obligation requiring an owner to restrain geese from running at large, the common law does not require geese to be restrained from going on the gravel roadway, the petition contained no allegations defendant's decedent knew or should have known that the geese were or ever had been on the roadway, plaintiff failed to allege facts showing a duty to warn of the geese on the road, and § 188.2, The Code, 1973, does not apply to geese.

Trial court sustained the motion to dismiss on the ground "there is no obligation under the law, common law or by statute, to restrain geese from running at large."

Appealing, plaintiff contends owners of geese may be found negligent in failing to use reasonable care to restrain geese so as to prevent creation of a dangerous road hazard. We agree.

I. Scope of review.

Overruling or sustaining a motion to dismiss does not depend upon trial court's discretion. It must rest on legal grounds and is subject to review by this court. Board of Supervisors v. Standard Appliance Co., 249 Iowa 438, 440, 87 N.W.2d 459, 461 (1958).

A motion to dismiss is a waiver of any ambiguity or uncertainty in the pleadings. Bigelow v. Williams, 193 N.W.2d 521, 524 (Iowa 1972). Such a motion grounded on failure to state a cause of action is sustainable only when it appears to a certainty the pleader has failed to state a claim upon which any relief may be granted under any state of facts which could be proved in support of the claim asserted. In making this determination the pleading should be construed in the light most favorable to the pleader with doubts resolved in his favor and the challenged allegations accepted as true. Murphy v. First Nat. Bank of Chicago, 228 N.W.2d 372, 375 (Iowa 1975); see Symmonds v. Chicago, M., St. P. & P. R. Co., 242 N.W.2d 262, 263 (Iowa 1976).

We approach our review of trial court's ruling with these principles in mind.

II. Issue of statutory obligation.

While we do not deem it controlling, we are satisfied trial court was right in determining there was no statutory duty to restrain geese.

Plaintiff relies on the following statute:

"188.2 Restraint of animals. All animals shall be restrained by the owners thereof from running at large."

The term "animals" as used in this section is not used in its normally broad sense. It is defined in § 188.1(3):

" 'Animal' or 'animals' when used in this chapter shall include and embrace horses, cattle, swine, sheep, goats, mules, and asses."

This language was adopted in 1924 (40 Ex. G.A., H.F. 71 § 1) supplanting § 2311, The Code, 1897, which included the definition " 'stock' means cattle, horses, mules and asses * * *." A historical review of our statutes and case law is found in Wenndt v. Latare, 200 N.W.2d 862 (Iowa 1972).

Plaintiff argues the legislature intended the words "include and embrace" to be words of enlargement, thereby extending the definition to geese and other domestic fowl.

We have examined this contention in light of the statutory construction rule of ejusdem generis, Federated Mutual Imp. & H. Ins. Co. v. Dunkelberger, 172 N.W.2d 137, 140 (Iowa 1969); 2A Sutherland, Statutory Construction § 47.18, at 109 (4th ed. Sands 1973), and the language of § 368.7(5), The Code, 1973 (now repealed, see § 364.1, The Code, 1975) by which the legislature empowered cities to enact ordinances to prohibit animals and fowl from running at large.

We have concluded the 1924 legislature in enacting § 188.1(3) coupled with § 188.2 did not intend its prohibition to include fowl.

III. Application of tort principles.

In this tort action grounded on negligence we also view the pleaded circumstances and implications necessarily inferred therefrom in light of ordinary tort principles. Defendant's assertions that there is no statutory or common-law "duty" governing the presence of these geese on the roadway should not becloud an analytical overview of the parties' respective rights. Appropriate here is what we said in Wittrup v. Chicago & Northwestern Ry. Co., 226 N.W.2d 822, 823-824 (Iowa 1975):

"In absence of a statutory obligation, to state there is or is not a duty is merely to state a result, a conclusion that plaintiff's interests are or are not entitled to legal protection against defendant's action or lack thereof. MacLean v. Parkwood, Inc., 247 F.Supp. 188, 191 (D.N.H.1965), affirmed 354 F.2d 770 (1 Cir. 1966).

'It is better to reserve "duty" for the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other * * *. In other words, "duty" is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of the apparent risk.

' * * * It is a shorthand statement of a conclusion, rather than an aid to analysis itself. * * * (I)t should be recognized that "duty" is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' (Emphasis added.)

Prosser, The Law of Torts § 53, pp. 324-26.

See also 2 Harper and James, The Law of Torts § 18.8, pp. 1058-61 ('Another and sounder objection to the duty analysis is that it is unnecessary and simply duplicates the inquiry into negligence.' Id. p. 1060).

In short, there is a place in our negligence law for a designation of duty: as a statutorily imposed obligation or as a label to signify a relationship between the parties, e. g., owner-licensee, carrier-passenger, manufacturer-consumer, employer-employee, in which the law recognizes a potential liability for harmful conduct. But as a label it carries with it no combination to unlock this issue: whether, applying logic, sound reason, and enlightened public policy, this railroad should be immune from liability to plaintiff, if it failed to act in a situation clearly entailing foreseeable harm or damage to plaintiff and others driving through the underpass."

The asserted right to permit geese to run at large must be examined in light of the common-law obligation of every person to use that reasonable care under the circumstances to avoid injury to another which an ordinarily prudent person would exercise in a like situation. Symmonds v. Chicago, M., St. P. & P. R. Co., 242 N.W.2d 262, 264 (Iowa 1976) ("We have always recognized the rule that negligence may be predicated upon a statute violation or upon the common law rule of 'ordinary care under the circumstances.' It may be based upon acts of commission or omission."); Lindquist v. Des Moines Union Ry. Co., 239 Iowa 356, 360, 30 N.W.2d 120, 122 (1947); Shatto v. Grabin, 233 Iowa 46, 50, 6 N.W.2d 149, 151 (1942).

IV. Liability under common law.

Applying this common law, we first examine the respective rights of the parties. Defendant's decedent's premises abutted a secondary road. Plaintiff was a traveler on the road.

In Stewart v. Wild, 196 Iowa 678, 683, 195 N.W. 266, 269 (1923), a case involving hogs on a highway, we articulated this well-recognized rule:

"It is the fundamental law of the highway that it is subject to the use of the traveling public, and that it must be kept free from such obstructions as are not incident to its use for travel. Whatever endangers travel thereon, and whatever is not incident to the lawful use or care of the highway, becomes, ordinarily, a nuisance and a public peril."

See Hawkeye-Security Ins. Co. v. Lowe Construction Co., 251 Iowa 27, 30, 37, 99 N.W.2d 421, 424, 428 (1959) (negligently dropping dirt, clay and mud on traveled portion of highway); Kehm v. Dilts, 222 Iowa 826, 827, 270 N.W. 388, 389 (1936) (leaving 5 to 8 inch hump in the highway).

While an abutting landowner is not liable with respect to highway hazards over which he has no control, he is under an obligation to use reasonable care to keep his premises in such condition as not to create hazards in the adjoining highway. 60 C.J.S. Motor Vehicles § 203, at 1029 (1969). He must conduct operations on his land in such a manner as not to injure the highway traveler. 65 C.J.S. Negligence § 63(144), at 930-931 (1966). He may be subject to liability for physical harm caused by an excavation or other artificial condition on his land which is so near an existing highway...