Ruby Ex Rel. Ruby v. Easton

207 N.W.2d 10, 1973 Iowa Sup. LEXIS 1004
CourtSupreme Court of Iowa
DecidedApril 25, 1973
Docket55483
StatusPublished
Cited by30 cases

This text of 207 N.W.2d 10 (Ruby Ex Rel. Ruby v. Easton) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ruby Ex Rel. Ruby v. Easton, 207 N.W.2d 10, 1973 Iowa Sup. LEXIS 1004 (iowa 1973).

Opinion

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, *13 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 riding 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 cáuse 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 thé 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 *14 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 arc 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

R.M. v. D.S.
Court of Appeals of Iowa, 2021
Nichols v. Schweitzer
472 N.W.2d 266 (Supreme Court of Iowa, 1991)
Lansky Ex Rel. Brill v. Lansky
449 N.W.2d 367 (Supreme Court of Iowa, 1989)
Wood v. Wood
338 N.W.2d 123 (Supreme Court of Iowa, 1983)
Miller v. Bonar
337 N.W.2d 523 (Supreme Court of Iowa, 1983)
Higgins v. Blue Cross of Western Iowa & South Dakota
319 N.W.2d 232 (Supreme Court of Iowa, 1982)
Peterson Ex Rel. Peterson v. Taylor
316 N.W.2d 869 (Supreme Court of Iowa, 1982)
Wadle v. Jones
312 N.W.2d 510 (Supreme Court of Iowa, 1981)
Brown v. Ellison
304 N.W.2d 197 (Supreme Court of Iowa, 1981)
Wright v. Welter
288 N.W.2d 553 (Supreme Court of Iowa, 1980)
State v. Galloway
275 N.W.2d 736 (Supreme Court of Iowa, 1979)
Meeker v. City of Clinton
259 N.W.2d 822 (Supreme Court of Iowa, 1977)
Oak Leaf Country Club, Inc. v. Wilson
257 N.W.2d 739 (Supreme Court of Iowa, 1977)
Lewis v. State
256 N.W.2d 181 (Supreme Court of Iowa, 1977)
Rush v. Sioux City
240 N.W.2d 431 (Supreme Court of Iowa, 1976)
McCarney v. Des Moines Register & Tribune Co.
239 N.W.2d 152 (Supreme Court of Iowa, 1976)
State v. Horton
231 N.W.2d 36 (Supreme Court of Iowa, 1975)
Town of Reasnor v. Pyland Construction Co.
229 N.W.2d 269 (Supreme Court of Iowa, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
207 N.W.2d 10, 1973 Iowa Sup. LEXIS 1004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruby-ex-rel-ruby-v-easton-iowa-1973.