Harryman v. Hayles

Decision Date21 September 1977
Docket NumberNo. 2-58259,2-58259
PartiesGary HARRYMAN and Virginia Harryman, Individually and as parents of Robert Harryman, formerly a minor, and Robert Harryman, Individually, Appellants, v. Gene E. HAYLES, Gilbert McCarty, Robert Riddle, Robert F. O'Malley and Lee County, Iowa, Appellees.
CourtIowa Supreme Court

Fehseke & Fehseke, Fort Madison, for appellants.

Hirsch, Wright, Link & Adams, Burlington, and Barry M. Anderson, Lee County Atty., Keokuk, for appellees.

Heard before MOORE, C. J., and RAWLINGS, LeGRAND, REES and REYNOLDSON, JJ.

LeGRAND, Justice.

This appeal arises out of an automobile accident in which Robert Harryman (hereafter called Robert), who was then a minor, sustained serious and permanent personal injuries. The accident occurred when a truck in which Robert was a guest passenger overturned after striking a washed-out portion of a county road in Lee County.

Robert started suit seeking damages of $2,000,000 for his injuries. His parents, Gary and Virginia Harryman, joined in the action, asking $100,000 for their separate damages. The action named as defendants Gene E. Hayles, Lee County Engineer, Gilbert McCarty, Robert Riddle and Robert F. O'Malley, members of the Board of Supervisors of Lee County, and Lee County.

The matter reaches us on plaintiffs' appeal from an order sustaining defendants' separate motions to dismiss the petition. We affirm in part, reverse in part, and remand for further proceedings.

Our review is limited to the issues raised by, and the allegations contained in, the pleadings. Stearns v. Stearns, 187 N.W.2d 733, 734 (Iowa 1971). We take as true all well pleaded facts. Bailey v. Iowa Beef Processors, Inc., 213 N.W.2d 642, 647 (Iowa 1973).

We recite the pertinent facts alleged in the petition as they become important in our discussion of particular issues.

Plaintiffs raise the following principal issues which they rely on for a reversal of the trial court's order:

1. Iowa Code § 613A.5 is unconstitutional on its face as violative of due process and equal protection.

2. Iowa Code § 613A.5 is unconstitutional as applied to these plaintiffs as a violation of the due process and equal protection clauses of the United States Constitution and of Article I, § 6 and § 9 of the Iowa Constitution.

3. The trial court erred in holding no cause of action existed against the individual supervisors and the county engineer.

Before reaching the specific issues, we make a few general observations which should be helpful later in this opinion.

The claims against Lee County were brought under Chapter 613A, which imposes tort liability on governmental subdivisions. Prior to the enactment of Chapter 613A, Iowa adhered to a policy of governmental immunity. In abrogating that doctrine, the legislature attached certain conditions to the rights there created. The one important to this appeal appears in § 613A.5. Although it has since been amended, the statute at all times material here provided as follows "Every person who claims damages from any municipality for or on account of any wrongful death, loss or injury within the scope of section 613A.2 shall commence an action therefor within three months, unless said person shall cause to be presented to the governing body of the municipality within sixty days after the alleged wrongful death, loss or injury a written notice stating the time, place, and circumstances thereof and the amount of compensation or other relief demanded. Failure to state the amount of compensation or other relief demanded shall not invalidate the notice; providing, the claimant shall furnish full information (regarding the nature and extent of the injuries and damages) within fifteen days after demand by the municipality. No action therefor shall be maintained unless such notice has been given and unless the action is commenced within two years after such notice. The time for giving such notice shall include a reasonable length of time, not to exceed ninety days, during which the person injured is incapacitated by his injury from giving such notice."

The present suit was not brought within three months nor was notice given the county within 60 days of Robert's injury. In other words, § 613A.5 was not complied with. In order to prevail, plaintiffs must show compliance was not required.

I. Plaintiffs say the statute is unconstitutional, both on its face and as applied to them. They raise due process and equal protection arguments.

We quickly dispose of the claim the statute is unconstitutional on its face by relying on what we said in Shearer v. Perry Community School District, 236 N.W.2d 688, 692-693 (Iowa 1975) and Lunday v. Vogelmann, 213 N.W.2d 904, 907 (Iowa 1971), where we held the statute valid. Those cases are dispositive of this issue.

II. This brings us to the more difficult problem presented by Robert's assertion the statute is unconstitutional as applied to him. It is, of course, possible for a statute which is valid generally to be unconstitutional in its application under particular facts. See Walker v. Johnson County, 209 N.W.2d 137, 140 (Iowa 1973) and authority there cited.

We digress here to describe the injuries Robert suffered in this accident as they are set out in the petition. He was rendered unconscious, his spinal cord was severed, five vertebrae were broken, and he was, for a time, completely paralyzed. He is now a quadriplegic with only limited ability to move his shoulders and will be confined to a wheelchair for the rest of his life. He was hospitalized continuously from August 24, 1972, until August 10, 1973, and was rehospitalized nine times between that date and August 8, 1974, the date upon which his claim was first asserted against Lee County, although he had filed suit against the individual defendants earlier.

Robert seeks to excuse his failure to comply with § 613A.5 on the grounds he was incapacitated from filing suit or giving notice because of his injuries. He alleges that condition continued up to the very time his petition was filed. This forms the background for his claim the statute is unconstitutional when it is sought to be applied against him by arbitrarily placing a 90-day limit on the period of incapacity which will excuse failure to give notice under § 613A.5. We hold there is merit to his claim.

It is important to understand the precise ground upon which Robert relies. As already mentioned, we have previously upheld the statute against general constitutional attacks. Here Robert presents a new constitutional issue. He insists the statute offends both the equal protection and due process clauses because it denies to some incapacitated claimants (those whose incapacity extends beyond 90 days) the same consideration it gives to other incapacitated claimants (those whose incapacity is less than 90 days).

We agree that this provision cannot withstand an equal protection challenge. While there is no requirement all must be treated alike in order to satisfy equal protection standards under the 14th Amendment, the differences in classification must be reasonable and bear some relationship to a legitimate state interest. Keasling v. Thompson, 217 N.W.2d 687, 690-691 (Iowa 1974); Lunday v. Vogelmann, supra, 213 N.W.2d at 904, 907. We have considered every possible hypothesis under which this statute might be sustained. We are unable to save a provision under which some injured claimants are allowed to recover from their incapacity before being required to give notice of claim while others identically situated except as to the severity of their injuries are denied that same right. The statute now creates two classes of incapacitated persons solely on the basis of how badly they have been hurt.

If incapacitated claimants are to be allowed a "reasonable" extension of time to give notice, all incapacitated claimants must be treated the same. This statute is fatally bad because it fails to satisfy this requirement.

We believe a proper result can be obtained by excising from § 613A.5 the words "not to exceed 90 days." This would eliminate the offensive part of the section, leaving intact the main purpose of the statute and giving effect to the clear intention of the legislature that incapacitated claimants be given a reasonable time to notify the governmental defendant of the injury.

This conclusion by no means ends our inquiry into this phase of the case. We must also consider what effect our decision has on the statute as a whole and determine if the entire section must fall because a part is invalid.

We discussed this same question at length in State v. Monroe, 236 N.W.2d 24, 35-37 (Iowa 1975). See also State v. Blyth, 226 N.W.2d 250, 261-262 (Iowa 1975); State v. Books, 225 N.W.2d 322, 325-326 (Iowa 1975); Frost v. State, 172 N.W.2d 575, 586 (Iowa 1969).

From these and other cases there cited, we learn the question is one of legislative intent. If it appears the legislature would probably have enacted the statute even if the objectionable part had been omitted and if it appears the statute can still accomplish the principal legislative purpose, the remaining valid part is said to be severable from the invalid. In such cases our obligation is to save as much of the statute as possible, eliminating only that which is necessary to make it constitutionally sound.

Applying those principles to this case, we hold § 613A.5 is a valid and enforceable statute except for the words "not to exceed 90 days." Those words are stricken. The statute with this modification is valid and enforceable.

We now hold a person incapacitated as provided in § 613A.5 has 60 days following the termination of his incapacity to give the statutory notice of injury. Cf. Sprung v. Rasmussen, 180 N.W.2d 430, 433 (Iowa 1970) and Bennett v. Ida County, 203 N.W.2d 228, 234 (Iowa 1972).

Our decision on equal protection makes it unnecessary to review the claim the statute also violates due process.

Even this, however,...

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