*1 Sisco, particular source.” come from a p. (special concurring 169 N.W.2d at DABOLL, Charles A. Administrator
opinion). Daboll, Gregory Estate of Alan Deceased, Appellant, guilty III. The instant case involves two plea majority convictions. The concludes of these must be set aside the first for the HODEN, Jr., Edward Frederick et first, comply
trial court’s failure to with the al., Appellees. guidelines and fourth second Sisco No. 56062. (a) judge trial did not: ask defendant Supreme (b) Court of charge; whether he understood the ad- Iowa. specifically rights vise him three Oct. supra he waived pleading enumerated guilty. position I have taken the Since pronouncements Boykin,
neither the con- process, of due
siderations nor the rationale prior holdings require
of our a record show-
ing procedures these two were specifically judge the trial a prerequisite
followed proper acceptance guilty plea, of a I ground
would affirm the conviction on the guilty plea knowing was voluntary of the
on the basis entire record. majority reverses the second convic- ground
tion on the defendant was not
apprised specific elements of the
charge brought against him. Inasmuch Ias compliance
believe with the first Sisco not entail a
guideline need recital judge specific of the elements of the charged, uphold I would
crime the convic- ground
tion on the the record shows the in fact
defendant did understand the nature charge against him and otherwise voluntary intelligent
entered a plea
guilty.
I would affirm the trial court.
MOORE, J.,C. and LeGRAND and UH-
LENHOPP, JJ., join this dissent. *2 alleged
Plaintiff paragraph 9 of each petition division of his negli- doctors’ gence in one or more of the following par- ticulars was cause of (a) decedent’s death: in failing to examine Alan Gregory Daboll in accepted *3 manner; proper medical (b) failing due medical Lyle David E. Richter exercise care Rodenburg, and A. and skill in exam- Bluffs, ining rays showing X appellant. for Alan Gregory Council Daboll fracture; (c) had a skull failing to admin- Johnson, Stuart, Thorn, Tinley, Peters & ister in the accepted proper and medical Bluffs, appellees. of Council for manner, medical care and treatment for Gregory hemotoma; Alan epidural Daboll’s MOORE, J., Heard before C. and MA- (d) failing and prescribe the SON, RAWLINGS, REES UHLEN- medication in the care and treatment for HOPP, JJ. Alan Gregory epidural Daboll’s hemotoma. denied, The doctors by separate answer, MASON, Justice. specifications of negligence the and that interlocutory appeal This by plaintiff in- Alan’s proximately death was by caused only volves the defendant-doctors in a negligence. their brought wrongful by death action Charles At the filing time of their answer the A. of the Daboll as administrator estate of doctors also filed interrogatories to be an- Gregory Alan Daboll. Plaintiff’s decedent by plaintiff. swered So far as relevant to pedestrian by was a who was struck an appeal, interrogatories this plain- asked January automobile at 11:44 a. m. respect with tiff to each of the specifi- four hospital p. taken to at 12:20 m. and cations of to describe in detail by there treated defendant-doctors after the standard of care which the doctors Alan p. treatment Daboll died at 9:25 observed, should have the manner in which January m. they failed to do so and to furnish the Defendant, Hoden, Jr., Frederick Edward name, address and medical specialty any was the owner and driver vehicle expert expressed medical who opin- had injured which struck and decedent. De- ion negligent defendants were alleged. fendants, George Pester, M.D., H. Donald T. Six weeks interrogatories after the were M.D., Stroy, Westfall, M.D., and Robert H. an filed order was entered directing plain- physicians are the who treated decedent tiff to file his answers days. within 10 defendant, after his admission to the Jennie court, period Within that plaintiff’s Hospital Edmundson Memorial in Council application, granted an- days additional 20 Bluffs. file in which to answers. Plaintiff had not interrogatories answered these appeals The administrator from the rul- the time perfecting appeal. the trial court ing sustaining the motion summary judgment. doctors Five months filing after answer the doc- tors moved for on the petition Plaintiff’s is in three divisions. grounds there was genuine no issue of 1 he damages In division seeks on behalf of material fact. Attached to the motion was Daboll; dependents of Alan an copy affidavit Dr. Pester and a second, damages pain suffering en- report physical of his examination of death, prior dured decedent to his ex- upon decedent hospital. admission to the care; penses hospital for medical and third, damages following for loss to his estate is is a of Dr. Pes- asked. ter’s affidavit: Referring plaintiff’s to Pester’s affidavit ad- upon his decedent
(1) He examined
part:
resistance stated in
hospital.
to the
mission
(The “history” was
affiant’s
and decedent’s
lection
for the
examined
vation.
(4) Decedent’s
(3)
(2) The initial
contusions
Skull
24 hours he
“history
knowledge of the
by X
rays ordered
accident.)
in various
statement
radiologist were normal.
vital
diagnosis
apparently based
*4
was under close obser-
cerebral
signs remained stable
parts of the
he had no recol-
by affiant and
was abrasions
auto accident
concussion.”
body
jury.”
in that the
vigorously controverted in a trial
all
ants’ affidavit
obvious
she
formation
will be
An affidavit
“That the facts
stated
the facts are
hospital. Upon
observed
head
presented
in said
not contained in
her son
injuries
* * *
affidavit,
contained in said
presented,
decedent’s mother stated
later
facts
hazy,
when first treated at
visits she observed
[*]
are and will be
dazed and with
Court and
and that
said affidavit
additional in-
**
* * *
defend-
are not
when
was transfer-
(5) After 24 hours decedent
nausea,
suffering
her son
from
vomiting,
Dr.
by
care and seen
routine floor
red to
reacting
light,
unconscious and continual-
p.
5:45 m. at
Stroy
approximately
injuries.
ly complaining of head
She stated
sleeping.
was
time decedent
was obvious to her decedent had a head
it
require
injury which would
close medical
9:15,
(6)
approximately
died at
Decedent
supervision,
testing.
observation and
Final-
January 22.
ly, the decedent was unattended “for all
(7)
autopsy revealed “small linear
An
eight
for
or
purposes
nine hours
practical
fragmen-
with no evidence
fracture
skull
sign
prior to his death and no vital
check
epidur-
depression” and associated
or
tation
during
period.”
made
was
hemorrhage.
al
hospital
All
records were also attached
(8)
reported to be
of death was
Cause
the resistance stated such contained
and
into the fora-
of the cerebellum
“herniation
“controverting
allegations
entries
of de-
due to cerebral edema result-
magnum
men
fendants’ affidavit.”
and the linear
epidural hemotoma
ing from
ruling sustaining the mo-
The trial court’s
fracture.”
skull
summary judgment
dismissing
tion for
the affidavit
paragraph
final
petition as to defendant-doctors
plaintiff’s
states:
premise
that due
primarily
is based
on
negligent
alleged
to the nature of the
acts
education, training
upon .my
Based
defendant-doctors,
against
expert testimo-
physician
surgeon, it is
experience as a
* * * ny
required
specifica-
was
to sustain such
opinion that defendants
my
* *
*
M.D.,
expressed
court
the view the
Westfall,
my-
tions. The
Stroy,
exception
requiring expert
self,
examination,
rule
testi-
care and treatment
Daboll,
mony
malpractice recognized
to establish
exercised the
Gregory
Alan
de-
692,
Grosjean Spencer,
685,
skill,
258 Iowa
knowledge,
care and attention
gree
139,
Sinkey
Surgical
N.W.2d
144 and
by physicians and sur-
ordinarily exercised
* * * Associates,
(Iowa
186 N.W.2d
660-662
like circumstances in
under
geons
1971),
communities,
applicable
since
was
this is not
Bluffs and like
that
Council
physician’s
where the
lack of care
linear fracture was such situation
nature of the
compre-
was
obvious as to within the
so
x-ray
not be discovered on an
it would
layman’s
knowledge
common
hension of
of Alan
and that
the death
the skull
experience.
expressed
The court
also
result from
Gregory Daboll did not
opinion
it
before it the same
degree
if
had
part to exercise such
on our
failure
skill,
record on a motion
defendant-doctors for
knowledge,
care and attention.”
(Iowa 1973).
would have no N.W.2d
directed verdict the court
“In ruling
except to sustain the motion.
a motion
summary judgment,
choice
court’s function is to determine whether
argument
In written brief and
I.
exists,
such a
issue
not to decide
respective
have stated their
view as
the merits of one which does.” Bauer v.
for review
presented
issues
Company,
Finance
Stern
733 Missouri, Development Inc., recognized, per Jones general rule is also 398 1011, (5 different words but al haps 1968); in somewhat F.2d 1013 Rogers Cir. v. principle, in the the same ways expressing Peabody 749, 342 Company, Coal 750- F.2d Club, Country v. Arizona following: (6 1965); Boozer Anderson, 751 Cir. and Trotter v. 630, 634; 544, McGahey P.2d 1191, Ariz. 434 102 (7 1969). 417 F.2d 1192 Cir. Swinehart, 469, (Del.Super. A.2d 471 267 v. For additional bearing federal cases Hazen, 323, 90 Idaho 411 1970); Lundy v. question this see 6 Moore’s Federal Prac- 770; 768, v. Elswood Trailer P.2d Schaefer tice, section and the cases cited at 56.17[42] 1170; 654, 1168, P.2d Sales, 516 95 Idaho Miller, 4 therein Wright note & 10 Bank of Crown Verplank v. Commercial Federal Practice and Procedure: Civil sec- 324, 52, Point, 251 N.E.2d 56- Ind.App. 145 2729 n. 75. tion 57; Bank, Michigan Bradshaw v. National 532; 354, 531, Mich.App. 197 N.W.2d 39 Harvey Pacif v. Great Atlantic & 482, Sauter, 244 Minn. 70 N.W.2d Sauter Co., 123, (5 1968), 388 ic Tea F.2d 125 Cir. 354; Asanovich, 351, 99, Mally v. 149 Mont. explained the reason for the rule the court 297; 294, Boyette, McNair v. 15 423 P.2d is because of elusive nature of the con 590, 69, 592, aff’d, 282 N.C.App. S.E.2d cept negligence, the determination of the 457; 230, Olstad, N.C. S.E.2d Olstad v. requires forming existence of which (N.D.1964); Preston v. judgment as to reasonableness of the 1022; Lamb, 20 Utah 2d 436 P.2d conduct of all the Turner, 312- Anderson S.E.2d circumstances of the If case. reasonable (W.Va.1971); Company, and Forbes Inc. minds could draw different inferences and MacNeel, (Wyo.1963). 382 P.2d facts, reach different conclusions from the has, foregoing list of authorities though undisputed, even the issue must be instances, most been limited to one case trial. reserved for jurisdiction although from each our re- Nevertheless, Moore, id., 56.17[42], section many search has disclosed additional cases Miller, id., Wright & section 2729 and the jurisdictions from each of those which have wrong federal cases warn us that it is general proposition. considered the that summary conclude is never “ * * * general There is a rule that action, appropriate in a negligence but approved has been followed and in which it is circumstances rare. many times to the effect that court issues encountered, But, when that unusual case is contributory negligence, plaintiff it not be be said that a must cause, the resolution of which though there is day have his in court even *7 requires the determination of the reasona- nothing to tried. The mistake should be par- of the acts and conduct of bleness the supposing that not be made of because sum- all the facts and ties under circumstances of mary judgment normally granted be cannot case, ordinarily disposed cannot of the case, the particular * * * in a kind of summary judgment. [citing au- granted not be in an unusual case of should Railway Gross v. Southern thorities].” question procedure the kind in where such (5 Company, 1969). 414 F.2d 296 Cir. appropriate. is in fact v. See Bland Nor- pronouncement appears This express Company, Railroad folk and Southern generally of the federal courts the view F.2d at 866. regard applicability to the of federal rule 56 are certain “Since affirmative defenses negligence Berry v. cases. See Atlantic par- susceptible categorical proof, often of Company, Line Railroad Coast F.2d release, ticularly judi- den., such defenses as res 1960), (4 cert. 581-582 Cir. U.S. cata, limitations, 1011; summary and statute a of 4 L.Ed.2d v. 80 S.Ct. Bland adjudication negligence of a claim based on Company, and Southern Railroad Norfolk 1969); (4 may appropriately Keating 866 Cir. v. be rendered for the de- 406 F.2d of law. These defend- merits as a matter the de- the case and such is when fendant ** establishing the sufficient; ants have the burden of legally fense any genuine issue of material absence of Moore, section 56.17[42]. id., negli- the ultimate issue of relating to fact fact, has af- this court of a matter As pleadings. the gence as framed sustaining trial court rulings of the firmed judgment in actions motions court from an exami- The trial concluded theory negligence of Gruener aon based the entire record before it there nation of Falls, 189 N.W.2d Cedar City of issue of fact for trial and genuine' was no City of Bloom- 1971) and Goodwin (Iowa were entitled to a sum- defendant-doctors 1973). How- (Iowa field, dismissing plaintiff’s peti- mary judgment of actions limitations ever, the statute to them as a matter of law. as tion chapter dealing with the the brought under reviewing granting or denial of govern- municipalities and liability of tort summary judgment motion this court views 613A, The chapter Code—was ing bodies— plead- underlying facts contained question The issue involved. primary depositions, interrogatories answers to ings, deci- not enter into either negligence did together with the on file and admissions sion. affidavits, to be any, if and the inferences general the court’s view the therefrom in most favor- It is drawn contributory negligence, party opposing the motion and that issues of able to the rule cause, the resolu the benefit of proximate gives any doubt negligence and requires propriety granting summary determination of which tion appeal of the acts conduct task on is to deter- judgment. Our reasonableness only all the facts and circum under mine whether a issue of mate- parties case, not sus rial fact exists and whether the law was stances summary adjudication either for correctly applied. Accordingly, this court ceptible of be re grant judg- the claimant but should against must reverse the of a ordinary manner is the appears it by trial ment if from the record that solved jurisdic in this to be followed is an unresolved of material proper one there issue Miller, Wright & 10 Federal tion. fact. Practice Procedure: section 2716. Civil question remains whether one where sum- case is an unusual present rely doctors on the affidavit of Dr. appropriate. is in fact mary judgment sustaining Pester the burden cast them. prima medical II. A facie case of normally of evi must consist
malpractice moving This burden of the doctors as the applicable which establishes dence in a motion for care, demonstrates standard the absence triable to establish issue violated, developes a has been standard with the burden of is not to be confused relationship between the violation causal plaintiff at trial to proof placed on sustain complained Kosberg of. and the harm specifications asserted Center, Inc., Hospital Washington 129 U.S. against defendants as cause of *8 322, 947, (1968) App.D.C. 394 F.2d 949 generate death in order to a his decedent’s Inc., F.2d Hospital Moore v. Guthrie 403 jury question. (4 1968). 367-368 Cir. the trial seeking uphold The doctors in to for ruling, argue court’s once as movants under rule their
The doctors
R.C.P.,
plaintiff may
rest
asserting
that
was filed
not
237(e),
on
exists,
allegations
petition
the mere
of his
but
as it then
there is
on
of the record
basis
response by
must
any
his
affidavit or otherwise
as to
material fact and
issue
genuine
no
a
specific
showing
facts
there is
judgment on the
set forth
to a
they are entitled
735
trial;
theory underlying
the same as the
to do so
a motion
for
if he fails
issue
genuine
for
judg-
directed verdict”
“in
entry
determining
rule mandates
burden,
whether he has
plaintiff.
borne his
the analo-
against
ment
a motion
gy between
for a directed verdict
the words
argument ignores
only
This
summary judgment
a motion for
appropriate” appearing in the last sen-
“if
helpful.”
237(e)
of rule
but also
Comment
tence
Advisory
quotes
The author
Notes of
Committee on
from
in the
this statement
56(e)
Co.,
Amendment
to F.R.Civ.P.
Sartor v. Arkansas Natural
Gas
724, 727,
approval in
apparent
forth with
Sher- U.S.
88 L.Ed.
is set
S.Ct.
Nissen,
N.W.2d at 339 and in
971:
wood
Lane,
tiary matter in and which would re- liberty to disbelieve issue, genuine not establish the absence of moving par- verdict for the quire a directed summary judgment be denied even if must ty.” present- opposing evidentiary matter is no Miller, Along 10 Fed- Wright this line & the last two sen- again set out ed.” We Practice eral and Procedure: Civil section portion of the rule: “When a tences of this 2713, quote this statement from Pierce v. summary judgment motion for is made and Co., (4 Ford Motor 190 F.2d Cir. rule, supported provided in this an ad- 1951): party may upon not rest the mere verse judge “Even in cases where the is of allegations pleading, or denials of his but that he opinion will have to direct a verdict response, by his affidavits or as otherwise for one or the other on the issues that rule, provided specific in this must set forth raised, he have been should hear showing there genuine facts that is a issue the evidence and direct the verdict rather respond, trial. If he does not so summa- try in attempt the case advance than ry appropriate, if judgment, shall be en- * * *.” a motion against (Emphasis supplied) tered him.” in the same Later section the authors Advisory In of the Commit following from Firemen’s Mut. quote the tee’s Comment and the inclusion of the Co., Aponaug Mfg. 149 F.2d Ins. Co. appropriate” words “if the rule it (5 1945): Cir. logical a summary that if the movant for judge ought on a “We do not think the judgment placed sustain the fails to burden to have motion for establishing by evidentiary him of * * * concerned himself at time issue, genuine matter the absence of a question what he would do if the with the granting summary judg of a motion for plaintiffs. jury should render a verdict for appropriate ment is not irrespective judge not know what he A indeed does deficiency opposing party’s affidavit regard in that until he has heard would do response. open jury the trial court before the reaching In its conclusion the court opinion jury has the benefit heavily appearing leaned on a statement expressed Only in their verdict. when the Nissen, 179 N.W.2d at Sherwood jury it is clear the such that evidence is the court discussed how a trial court where on, though they go none to would have whether a fact issue ascertained movant for unfavorable to the believed opinion quotes excerpts from 6 exists. The the motion be sus- summary judgment, can Practice, Federal section Moore’s 56.02[10] jury denied.” tained to the effect and section 56.15[8] discuss authors theory underlying a mo- this same section the “functionally the *9 length comparison the essentially summary judgment is tion for sustained a where the trial court had case for dismiss- with motions motion judgment summary judgment motion for based on pleadings the and directed al, judgment affidavits of defendant-doctors stated verdicts. extent the to the affidavits countered the regard pronouncement to the petition charges plaintiff’s they seem “to repeated in Moore and cited from Sartor plea little than a of not constitute more attention is directed opinion, in this earlier apposite The statement guilty.” here. that the trier of fact in this state rule to the defendant-doctors did sustain Since evidence, it disregard but totally may not placed upon moving the burden them the weigh the evidence and duty to has judgment in motion for to credibility of witnesses. In other determine genuine prove the absence of triable issues jury are not bound to words, the court proof going forward with burden of true because it is not testimony as accept issues was not shifted the existence of such v. Jenkins Truck contradicted. Schmitt plaintiff. to Inc., Iowa, Lines, it is problem presented In answer to the cited. authorities opinion the trial court erred in the court’s successfully rule it cannot Under this sustaining summary judg- jury not be at that a would maintained petition dismissing plaintiff’s ment and liberty evidentiary to disbelieve the matter is not an unusual the doctors. The case to Dr. in the affidavit of Pester if contained is in fact where one through him as were offered evidence such appropriate. stage. at the a witness III. reversed and Since case must be opinion grant It is the court’s proceedings in ac- remanded for further summary judgment in ing the motion for with the Rules of Civil Procedure cordance cannot be sustained on the case before us in the record which have other matters pronouncement from the basis require attention men- come court’s Sartor. tion. brings an examination This the court to Plaintiff his fail- explanation makes no which has been Dr. Pester’s affidavit interrogatories propound- ure to answer the out down to its essentials set boiled Although summary ed defendants. simply It states that opinion. earlier in this may not be a sanction to judgment qualification it was his based on the doctor’s failure, we impose by reason of such call examination, care and treat- opinion to the fact there sanctions attention of decedent defendant-doctors ment may impose. fit which a court see to the time of decedent’s admission to from trial it until was will be incumbent hospital his death rendered in On generate jury ques plaintiff in order to accepted with medical standards accordance testimony by expert perti not result from fail- tion show his death did nent standards of care and that the failure part of defendant-doctors to ure on the skill, knowledge, comply of defendant-doctors to with such degree exercise particulars in one more of attention. standards care and alleged awas cause of decedent’s it is not suffi- As we view the affidavit death. in itself to demonstrate defendant- cient With to set guilty malpractice so as directions to the trial court were not doctors sustaining aside its order a determination as a matter of the motion justify plain- dismissing there was no issue of material law petition tiff’s necessary as to defendant-doctors the to be tried. fact case Talcott, (Fla. In Holl v. 191 So.2d Reversed and
1966), reversing malpractice the court in remanded. *10 summary In order to set judgment proce- except concur All Justices UHLEN- operation, dure in HOPP, J., doctors had to who dissents. file a supported by motion (or by affidavit other proof) meeting the requirements of rule UHLENHOPP, (dissenting). Justice 237(e). They did so. The affidavit byis a Usually question negligence a cannot doctor, speaks medical he personal from by opposing affidavits because be resolved knowledge, and he makes statements which negligence is a fact matter and fact matters would be admissible evidence. He states by trial. But the are determined the facts as to happened what and swears exempt negligence judgment rule does the doctors in that so acting used the care operation. In broad lan- cases from its and skill by exercised physicians claim, guage, applies the rule to “a counter- surgeons. proper Under questioning, claim, plaintiff cross-claim” and either a or he could testify so on trial. That the affi- may opera- call the rule into or a defendant ant is one of the defendants would not (b), 237(a) Rules of tion. Rule Civil render this testimony inadmissible; he is Procedure. If a case involves an issue expert. still an 61 Am.Jur.2d Physicians, by summary judg- which is determinable Surgeons & Other Healers (“As 116 at § ment, summary judgment procedure ap- to the issue of practice, standard of such although plicable the action is on based may by standard be established the defend- negligence. was Such the situation in Indeed, ant’s testimony.”). own the affida- Falls, City Gruener v. of Cedar 189 N.W.2d vits in summary judgment proceedings are (Iowa) (question timely notice frequently by parties themselves, stat- ease). negligence ing matters in their own interest. present negligence The one case is This meant plaintiff that to had come susceptible to by resolution (or proof) forth with affidavits other like- judgment. Defendant doctors are not at- meeting requirements wise of rule tempting try question to negligence 237(e),which in this case means an affidavit by summary judgment. They itself are en- proof by expert, an expert or other since deavoring plaintiff to ascertain whether has testimony is essential. negligence.
the essential evidence of
The
such an affida-
produce
Plaintiff did not
very purpose
summary judgment proce-
proof.
properly
vit or
Hence the
court
is to
party
dure
ascertain whether a
has
plaintiff
sustained the motion. Had
come
essential evidence or whether his claim or
the essential affidavit
proof,
forth with
Joiner,
only
paper.
defense exists
De-
question
then a
would have
termination Of Issues Without A Factual
posed
required
which would have
been
de-
Trial,
Iowa L.Rev.
by trial.
termination
cannot
Plaintiff
recover in this lawsuit
plaintiff
get
Either
ex-
can
essential
produces expert testimony.
unless he
get
evidence or he cannot
it.
pert
If he can
opinion,
in its
I agree,
court states
it,
get
he had to do so at the
upon plaintiff
“it will be incumbent
in order
judgment stage.
by
When confronted
jury question
generate
to show
summary judgment,
motion for
he
expert testimony
pertinent
standards
not elect
get
could
to wait until trial to
his
care and that the failure
defendant-doc-
very purpose
evidence.
the motion
comply
with such
tors
standards
one
forth,
require
is to
then
evidence be
set
particulars alleged
was a
or more
necessary
to see whether a trial will be
cause of
decedent’s death.”
If the
all.
needs additional time to
added.)
hearing
motion,
(Italics
Specifically,
get
the doctors
evidence before
on the
plaintiff
he can ask an extension of time.
required
to show that
See
their
Mauer,
(Iowa).
testimony.
and he time, exists to then no reason
extension Summary judg- a trial.
put to weed out was devised procedure
ment cases.
just such
I affirm. would OF Rex BALLIN MARRIAGE re the Ballinger. Barbara A.
GER
Upon A. the Petition of Barbara
BALLINGER, Appellee, Concerning,
And BALLINGER, Appellant.
Rex 2-56758.
No.
Supreme Court Iowa.
Oct. Jones,
Roland K. Landsness of Cam- Carl, Landsness, bridge, Feilmeyer & Atlan- tic, appellant.
Louis, Kohorst, Harlan, Moore & and Ha- Atlantic, DeKay, rold G. appellee. Howard, Atlantic, R. G. for children. by MOORE, J., MASON, Heard C. RAWLINGS, LeGRAND and REYNOLD- SON, JJ.