*1 1973); Wolf 579, (Iowa N.W.2d exhibits, although first admission 1972). (Iowa Murrane, 199 N.W.2d circumstances these some testifying to us, at a I am now before record he Under way no there eventually admitted discretion” “broad how see loss to the exhibits condition tell the could has Murrane v.Wolf mentioned times. critical abused. per- authority for is no there I submit court. the trial which, affirm I would exhibits introduction mitting the are decisive purposes, practical for all is no show- litigation when
important MASON, join J., MOORE, J.,C. authentic are exhibits ing that dissent. this affirmatively discloses evidence homes various around lying they have been years with four than more offices their to assure measures protective
tegrity at trial. produce Professor failure to think the furnish, if in order as a witness
Wardle is fatal to information could, this vital Appellant, Lena FREESE, the exhibits attempt to use plaintiff’s testimony of Hankins. et al., Norman F. LEMMON Appellees. are agree that defendants can I Neither they remedy because here without R. FREESE, Appellant, John objection. I believe timely to make point— very to the did and that went et al., account for the condition Norman F. LEMMON failure to Appellees. ex- the trial court exhibits— out and struck Hankins’ cluded exhibits Nos. 55498, 55499. required testimony. are not Defendants Supreme Court of Iowa. objections to same kind repeated make Sept. 19, 1973. preserve of evidence order Evans, 193 record. 'See State v. Rehearing 1973. Denied Dec. 1972). (Iowa majority also discounts the motion testimony to strike Hankins’ at the conclu- plaintiff’s general
sion case as too Contrary majori-
considered here.
ty’s statement, did defendants not move to testimony.
strike all of Hankins’ The mo- portion
tion asked relating to challenge exhibits be stricken. ex-
hibits had then been excluded and the
objection, them, limited as it was to
clearly sufficiently specific. definite and
We have often said the introduction of
expert testimony largely lies within the
discretion of the trial court. Heth v. Iowa
City, 1973);
Fischer, Brands, Inc., Inc. v. Standard
Lena damages per- Freese recover for injuries, sonal and cause number 55499 is Freese, by action R. the husband John Freese, damages of Lena to recover for society, loss of his wife’s comfort and com- panionship. petition divisions;
Each contained three against divisions and II are claims Nor- Lemmon, Kay man F. Lemmon and Ellann specific negligence based and res ipsa loquitur; division III each against claim Merwin R. Dieckmann Dr. specific negligence, based on such division having by been added amendment. The Lemmons were the owners operated being automobile which was by Septem- defendant Lemmon on Norman F. 21, 1969, ber and which defendant Norman against plaintiff drove into and Lemmon Freese, causing Lena her to sustain sub- injuries. respective stantial The claims of plaintiffs against defendants Lemmon are appeal. not involved in this allege in both cases that on September 1969 defendant Norman automobile, Lemmon drove an owned wife, paved portion him and his of the off of Rainbow Drive near the entrance Hippodrome Dairy Congress Cattle Waterloo, striking plaintiff Lena Freese, pinning her an automo- parked nearby, causing injuries to her bile leg knee, pelvis, fracturing left her causing her abdomen injuries lower specified thigh. petition In her she Butler, Lundy, Hall, Eldora, & Wilson Norman Lemmon negligence of defendant appellants. for respects in several need not con- which we Cohrt, Waterloo, Swisher & appel- here, sider are not as the Lemmons lees Norman Kay F. Lemmon and Ellann appeal. in this volved Lemmon. plaintiff petition Freese R. John Barnes, Wadsworth, Elderkin, Locher & substantially couched in the same lan- Pirnie, Rapids, Cedar appellee Merwin specifications guage, the same R. Dieckmann. negligence petition as did the specifica- tiff Lena In one of the Freese. tions which was asserted respective plaintiffs in to their amendments REES, Justice. petitions, they alleged that at the time Freese, de- appeal cases; Lena separate sustained injuries involves two suffering fendant cause Lemmon was number 55498 an action F. negligently failing employ recog- seizure, becoming unconscious and from a appropriate diagnosis nized tests for the automobile to control unable of the cause of defendant Norman Lem- defendant operating. That said seizure; mon’s from a first previously seizure had knew, ordinary care in the exercise spinal failing to take a known, because ought to have *3 tap Lemmon; of defendant Norman dangerous him to condition it was automobile, by negligently an and that reason (6) advising drive Nor- defendant undertaking negligent he man thereof Lemmon that he could drive an auto- ; operation at the time of an automobile and the mobile pe- complained the the manner spe- failing to consult plaintiffs. of the titions cialist whom the had to prior advising Dieckmann was ferred Defendant Merwin R. to the defendant defendant in sec- he named as an additional Norman Lemmon that could drive an respective petitions. ond amendment automobile. to plaintiffs amendments, asserted such alleged Plaintiffs further that the con- material, defendant Dieck- that at all times duct of defendant Dieckmann in of the all practice physician to mann licensed was a foregoing particulars, was willful and wan- Iowa, in the State and was medicine ton, prayed exemplary damages, Waterloo; all practicing alleged of the addition damages. to actual happening of circumstances of the the ac- allegation cident, including the that at the cases, In each of the Dieck- defendant plaintiff’s injuries time of defendant Nor- mann peti- filed his motion to dismiss the suffering a sei- Lemmon was from man plaintiff against tion of him for the reason zure, becoming and unable unconscious to same failed state a claim operat- he control the automobile was any granted, relief could as- previously ing. That said defendant had petitions serted to allege failed the vio- less than suffered from seizure three lation any duty by owed defendant prior plaintiff’s injuries and had months plaintiff Dieckmann Lena Freese diag- Dieckmann consulted defendant (or derivatively, plaintiff R. John his treat and to advise nose condition Freese), for that: alleged in respect They him de- thereto. (a) duty properly diagnose and pro- fendant Dieckmann undertook in his treat allegedly condition capacity fessional as a medical doctor to Norman Lemmon a F. owed diagnose treat the aforesaid condition only; Norman F. Lemmon Lemmon, of Norman and to advise him respect thereto, and that defendant any negligence predicated (b) upon the negligent in: Dieckmann was allegation that defendant Dieckmann ad- vised Norman operate Lemmon to an auto- failing diagnose and ascertain the mobile or failed to advise Norman cause of the first seizure of defendant F. automobile, Lemmon not to an drive Lemmon, Norman learn of its reoc- must knowledge. based That ; currence operative are alleged in plaintiffs’ (2) negligently failing petitions to advise defend- to the effect de- ant Norman Lemmon not to an physical drive auto- fendant Dieckmann con- knew ; mobile dition of Norman Lemmon be dan- would gerous to general public or the (3) negligently failing to warn defend- tiff in particular; Lena Freese ant Norman dangers Lemmon volved in driving plaintiffs (c) automobile in view af- all circumstances; firmatively facts and state defendant Dieckmann any specify pleading condition of Norman motions must aware of wherein the not preclude his Lemmon which attack claimed to be insufficient. F. automobile, and able drive being must, therefore, peti- examine the allegations. are plaintiffs bound plaintiffs tions of the to determine whether appears certainty plaintiffs the motions to dis- sustained to a have Trial court plaintiffs cases. of the miss filed each to stated claim on which relief actual may granted found that ruling trial court state of facts In its support proved condition of could be knowledge of the not See Osbekoff v. Dieckmann is claims asserted them. Lemmon Dr. petitions. Trial plaintiffs Mallory, in their 188 N.W.2d by the Waller, court, placed on the ruling, in its reliance 1971); Wheeler 395 585, (Iowa 1972). case of *4 involving an account- 1969), a case (Iowa ruling of In on the motions to dismiss its in the mat- found that The court also ant. Dieckmann, particularly defendant element here there was no before us ters specifically, ruling in the on the motion Lena by plaintiff reliance of conscious findings, trial court found enlargement diagnosis treatment of Freese petitions by plaintiffs’ alleged actual notice Dieckmann, that there by or Lemmon Dr. defendant Dieckmann of first seizure to indicate anything pleading in the Lemmon, by Norman suffered defendant Dieck- was known to Dr. that Mrs. Freese plaintiffs’ petitions further but found conformity with a motion mann. allege Dieckmann had failed to defendant the court plaintiffs enlarge findings, knowledge of the condition of his actual petitions plaintiffs’ further found or led to the first sei- which caused knowledge by defendant Dieckmann actual zure. defendant the first seizure Lemmon, alle- found that such but specifications occurs to It us that plain- sufficient and that gation was not by plaintiffs in their asserted allege petitions defend- tiffs’ that respective petitions, adequately serve knowledge of ant Dieckmann had actual negli- charge Dieckmann with defendant Lemmon which caused or the condition of pro- failing employ recognized gence the first seizure. led to of Lem- the cause cedures determine seizure, allega- that first such mon’s rulings sustaining From such the motions tion, allegations coupled cases, respective plaintiffs to dismiss Dieckmann: They appeal. error assert one reversal, rely namely: defend- (a) negligently failed to advise defendant sustaining trial court erred Lemmon not to drive an auto- ant Norman dis- ; R. Dieckmann’s motions to Merwin mobile
miss, petitions plaintiffs’ dismissing and in negligently failed to warn defendant (b) assigned The error Dieckmann. so dangers involved Norman Lemmon of points. brief is buttressed several driving in view all the automobile circumstances; and Procedure, Rule Rules of
I. Civil fact provides every defense in law or defendant Dieckmann (c) any pleading must be asserted in the Lemmon the defendant Norman F. advised responsive pleading thereto if one automobile; that he could drive quired, required, if at the none except that to specific cannot said (b) trial failure to state are so that it appear plaintiffs granted certainty it any claim on relief can be is made on which to dismiss failed to state a claim may be raised motion such have answer, granted any state of claim, filed relief (d) before proved support sustaining Trial erred in defendant court could facts which plaintiffs’ by them. Dieckmann’s motions dismiss asserted the claims is, as to him. there- of defendant to dismiss motions fore, reversed and remanded. cases, respective we filed Dieckmann and remanded. Reversed feel, of substantive law the area invade properly to the basic and are not directed petitions of the proposition that the UHLENHOPP, REYNOLDSON, HAR- tiffs to state a cause action or claim fail McCORMICK, JJ., RIS and concur. pro- granted,
on which relief could be might be a state of facts vided of course UHLENHOPP, specially J., concurs by plaintiffs support established REYNOLDSON, joined by HARRIS and long cases line of Iowa asserted claims. McCORMICK, JJ. have Newton v. enunciated rule. See Center, 916, 920, City Grundy 246 Iowa LeGRAND, J., joined by dissents 162, 164; Co. v. Ke-Wash MOORE, J., and C. MASON RAWL- Co., Stauffer Chemical 177 N.W.2d INGS, JJ. Lagerpusch Lindley, 1970); 209; 1033, 1036, 115 Iowa UHLENHOPP, (concurring). Justice Wolfgram, Nelson 173 N.W.2d *5 Mallory, supra; (Iowa 1970); v. Osbekoff majority opinion. Plain- concur Waller, supra; v. Halvorson Wheeler v. allege negligently tiffs that Dr. Dieckmann 314, 319, Decorah, City of 258 Iowa diagnose failed Lemmon’s con- N.W.2d 860. negligently dition and advised Lemmon “that he could drive an automobile.” Kanne, Ryan supra, The case of v. if it motion to dismiss is sustainable which was referred trial court its appears certainty plaintiffs to a could rulings on defendant’s motions to dismiss any prova- not recover state under of facts propo- may be referrable to substantive petition. ble under their Mal- Osbekoff v. urged sitions defendant Dieckmann lory, (Iowa). It seems to dismiss, but is not relatable his motions petition, plaintiffs me that under their proposition or to the as to whether basic prove bringing facts them could within § not the in these cases motion dismiss 2d: of the Restatement Torts 311(1)(b) on the basis should have sustained plaintiffs’ petitions a state negligently gives infor- One who false against cause of action Dieckmann. is subject mation to another physical harm action taken caused trial court erred in its rul- We conclude by the other in reasonable reliance ing sustaining of defendant the motions information, harm re- such where such petitions Dieckmann to dismiss persons as ... to such third sults adopt tiffs as to are unable to him. We peril expect put in the actor should to be reasoning say of the trial court by the action taken. plaintiffs as a certain- section b to that also Comment See ty failed to state claims on which part profes- (“Thus it is much a of the as might granted lief be state of physician give of a correct sional proved support facts which could as character of the dis- information to the claims asserted them. suffering, patient his is ease from which unnecessary knowledge necessary II. deem is to consider where such others, propositions urged by safety patient other is to appellants or as it I, as our supra, diagnosis prescribe conclusions in ne- make a division correct or to added.). cessitate a appropriate reversal trial Italics court. medicine.” Stanko, REYNOLDSON, 118 Ohio St. Cf. HARRIS and Mc- Jones Allen, 456; Skillings CORMICK, JJ., 143 Minn. N.E. join this Concurrence. 663. 173 N.W. plaintiffs If introduce evidence on trial LeGRAND, (dissenting). Justice jury reasonably from which a could find This case appeal reaches us on an from Dieckmann (1) Dr. ad- sustaining order a motion to dismiss drive, vised Lemmon he could (2) plaintiff’s petition as to the defendant Dr. due the exercise of care Dr. Dieckmann course, Merwin Dieckmann. R. Of we ac- expected should have that members cept well-pleaded as true in facts deter- public thereby put peril, (3) mining petition states a whether cause that Lemmon drove in reasonable reliance against of action the doctor. advice, that Lemmon malady, (5) recurrence of that Lem- his It Dieckmann negligently Dr. result, mon struck Lena Freese as a told his (defendant Norman F. plaintiffs thereby damaged, were Lemmon) safely he could drive an automo- jury presented then a case would be “seizure,” despite bile an earlier a condi- 311, supra. Dr. Dieckmann under § sought tion which he had Dr. Dieck- These matters would constitute a state of this, help. mann’s medical From the ma- provable petition. under the (As to jority respon- holds Dr. Dieckmann what is due negligence by physi- care or injured sible to those in a auto- subsequent cian, Grosjean Spencer, see 258 Iowa allegedly occurring mobile accident because 685, 140 139.) again defendant Lemmon blacked out. The rule of the Restatement is limited to authority is support No cited to such involving “physical cases harm.” Hence it result, and I dissent from it. inapplicable involving cases financial matters, reports as accounting times, title rather plaintiff’s peti- Until recent opinions. *6 See 170 tion would have summarily dismissed (Iowa). attorney’s In the case an ground of duty owing the was opinion client, title to a addressed for ex- privity from Dr. Dieckmann to her —no ample, person a third opinion realizes the upon liability. privity to which base The given for the concept weakened, use of the client and greatly not has been if not person, for the third and if per- scrapped, the third completely when circumstances opinion son relies wrong- on the apparent does so at his which it is exist from peril. person Not standing anticipated so with a third reliance a doer should have on the street who is struck a motorist his conduct and which party third undergoing a present manifestly unfair person making convulsion. The third it rely escape responsibility does not on a doctor’s statement that him for allow it is all right case, however, for the has car- negligence. drive. his No patient, who rely was intended to extreme which the on that ried that doctrine to the statement, drives, relies on the con- majority it and and the I believe that does here. public thereby endangered. majority opinion are both sequences far-reaching and indefensible. require Restatement rule does not know doctor the statement is false. subject received extended whole required All that in this connection is Judge Cardozo discussion Chief that the statement be not true and that t'he Corp. v. the New York case of Ultramares “negligently” Restatement, doctor give it. Touche, A. 174 N.E. N.Y. Torts 2d (“One negli- (b) who § a (1931). That case involved L.R. 1139 gently gives etc.). false information” an accountant third-party against claim negligent concur therefore reversal of the who was to have been judgment. preparation financial statement of a municipal bonds, employed corporate
for a firm had him for with opinion knowledge opinion purpose. That been both that will has widely roundly brought public, cited and criticized. See will notice Kanne, investors, Ryan they liable if become Factors, decision, a and Rusch Inc. v. have overlooked statute or a 1969) Island, controversy if the (D.C., 1968), Levin Rhode F. same extent as Nevertheless, one client and Supp. citations. were between 90 and advisor. companies insuring an tract opinion, refused to extend Title titles to a land, ap- knowledge that at an liability accountant’s for miscon negligent they persons proaching rea the fact duct to the accountant had no auction statement, rely stated son to believe on his have insured will be to the bid- ders, purchasers will which are more become liable contains observations even persuasive may policy wish the benefit a circumstances now who facing they payment premium. a than were in without These us 1931 when extreme, may case was seem to be but decided. illustrations little, go any, if farther than we are excerpts opinion Several from that are go Negligence, invited to now. more- repeating: worth over, will have one standard when employer, viewed relation to the “If liability an ac- [of standard, a another stricter times exists, parties] countant to third a public.” viewed in relation to blunder, thoughtless slip or the failure to detect a or forgery theft beneath the analogous problem considered an entries, cover deceptive may expose supra, a suit ac- an a accountants to in an indetermi- who had countant certified erroneous nate amount for indeterminate time financial statement which was then relied to an indeterminate class. The hazards upon by purchaser of the business. a conducted on terms business these purpose The accountant knew are so extreme as to enkindle doubt prepared which the statement was whether a not exist in the im- flaw persons knew the even whom was plication that exposes to these knew that it be submitted. He also 444) consequences.” (174 (Em- N.E. at with the be used connection sale of phasis added). business and that it would be relied negotiating those busi- transfer In distinguishing Shepard, Glanzer v. ness. *7 238, 236, 233 275, N.Y. 135 N.E. 23 A.L.R. case, from the Ultramares recognized Ryan in prob- This-court the Judge pointed Cardozo out that in Glanzer by refusing lem which now us to ex- faces the act negligently performed which was beyond tend the rule di- the circumstances very purpose was for the furnishing of a Ryan at in rectly issue the said case. We weight to the complaining party. certificate there: It was the “end and aim of the transac- tion” and principals both to the transaction words, position “In other believe we the (174 knew this. 445.) N.E. pro- announcement in Restatement the 552, may posed draft Torts [section 2d] significant Another statement made accepted to the it extends extent Judge appears page Cardozo at 448 of right to negligence for the to recover N.E.:' persons guidance for and whose benefit “Liability negligence'if adjudged for in is the accountant knows the information intended, this case extend many callings will especially party to the to be other Lawyers than an auditor’s. who is before identified the state- benefited certify opinion their as validity report of the ac- ment or is submitted 403). If, however, parties. the page innocent third (170 N.W.2d countant.” interpret authority holding (Emphasis original). in courts this as liability substantially for increased for in grave consequences there are I believe profession accounting the but not imposes unlimit- adopting a doctrine which recognized professions’, ‘other also may liability against physicians ed who perhaps protection a the of return to negligently advised treated have privity would be advisable.” cited, and patients. has been own No case any, find even A similar is in annota- unable which caveat voiced the have been to A.L.R.3d, importance (1972), the scope and tion in 45 approaches 1181-1205 attorneys. disadvantages liability which the ma- deals public policy with the of says at jority opinion There the annotator 1185: entails. same,
Although be the “It submitted that neither the strict principle the is doctrine, privity potential its public policy have these considerations applied unrecompensible injury par- greater impact when innocent finitely ties, may, complete a of Be that it abandonment than others. as nor doctors poten- however, principle privity, entailing range has a general the itself vast liability, a presents a caution from both tial workable solution word occasioned Harper James, attorney’s question the courts writers. Rather, appear parties. Torts, 18.6 at third (1956), section The Law determined, on a discussing the the 1052, the issue should page authors balancing a basis, by the general extending case case proposition of factors, extent persons say including the remote third this: number of the transaction involved the ultimate question “The whether such harm to party, foreseeability of third the imposed as duty should a matter of the con- party, the the third closeness policy. depend This in will the turn on and the the nection between factors, namely, balancing of several suffered, policy pre- and the injury put burden it would activ- defendant’s venting harm.” future ity; the extent which the is one risk Biakanja Irving, 49 Cal.2d See normally activity; incident to and Donald v. Gar P.2d plaintiff; risk and the burden to Cal.App.3d Cal.Rptr. ry, 19 respective availability and cost of insur- 45 A.L. cf. Anno. (1971); A.L.R.3d parties; the prevalence ance to two (1972). R.3d 979 fact; desirability insurance in putting pressure effectiveness of present serious case involves other, on one than insure rather many reaching busi- consequences to far regard judicious for such like. professions. recognized nesses might justify liabil- alistic considerations adopted rule ity some situations not others recognized applicable in other “may be even where there no basis doctrine and attor- professions, such abstractors as (Emphasis distinction.” *8 402). neys.” (170 N.W.2d original.) policy inherent public The considerations Review, note in 20 Drake Law n be- this rule under circumstances 411, (January discussing our 1971) ap- importance overriding when come of Ryan Kanne decision mentions limits v. impos- is practitioners. It plied to medical liability imposed on as follows: taking to resolve the issue without sible us appear “These which confronts limitations to be both usa- into account the crisis ade- availability and cost of ble to the accountants the court and to both as yet remain fair to the health quate accountants care. See I.L.R. (April 1972). Today’s opinion, if act. To that extent these cases are much stand, permitted only aggravate can like Shepard Glanzer v.
already grave problem, previously which finds medical both of which have been help frequently at all unavailable and its referred'to.
cost, available, reaching when it fast I would affirm the trial court two prohibitive amounts. First, grounds. authority there is support the conclusion reached the ma- opinion will have several immediate and, second, jority; public policy consider- untoward It cause physicians, results. will imposition ations such an make of limitless possible, exposing to shun cases them liability indefensible. liability to such limitless or their advice justified will be appre- ultraconservative in
hension over the fate awaits if them MOORE, C. MASON J. they give might what otherwise have RAWLINGS, JJ., join in this dissent. sound medical counsel.
Furthermore, if such is to be
borne profession, the medical al- oppressive
ready cost of medical attention
must be further No increased. matter how is accomplished by this with- insurance or — out it —it is the who must ultimate- COMPANY, Appellant, The MAYTAG ly pay. my I also disagreement desire note PARTRIDGE, Thomas Member Chair- special concurring with the opinion in City man of the of Review of the Board says Uhlenhopp plaintiff Justice Newton, Iowa, al., Appellees. et pleads a cause of action under section No. 55481. 311(1) (b), Torts Restatement of 2d. That special section set out in the concur- Supreme Court of Iowa. rence. Sept. 19, 1973. agree
I cannot Rehearing the doctor’s Denied Dec. 1973. advice petition as set out can be said
to have been “false” more than a law-
yer’s prediction incorrect toas the outcome litigation type is “false.” This is the
statement to falsity which neither veri- nor
ty attaches. The relied section on has no
application pleaded under the facts. special relies concurrence on two
cases, neither of which meets the issue. Stanko,
both St. Ohio Jones Allen, N.E. Skillings v.
Minn.
doctor personally each case told the party
third involved was safe to
come close association with the disease.
The third party in each case relied on the
representations the doctor had him made to which the doctor knew he