Armstrong v. City of Des Moines

• Decision Date: 17 November 1942
• Docket Number: 46060.
• Citation: 6 N.W.2d 287,232 Iowa 711
• Parties: ARMSTRONG v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

6 N.W.2d 287

232 Iowa 711

ARMSTRONG v. CITY OF DES MOINES.

No. 46060.

Supreme Court of Iowa

November 17, 1942

Appeal from District Court, Polk County; O. S. Franklin Judge.

F. T. VanLiew, Bruce J. Flick, and Sol Glick, all of Des Moines, for appellant.

Gillespie & Gillespie, of Des Moines, for appellee.

MITCHELL Justice.

Plaintiff Louise Armstrong commenced this action against the City of Des Moines, Iowa, and Board of Waterworks Trustees of the City of Des Moines, Iowa. She alleged that the City of Des Moines, Iowa, was acting as a municipal corporation. That there was a concrete sidewalk located in front of or to the north of the property locally known as 503 East Walnut Street. That the Board of Waterworks Trustees of the City of Des Moines, Iowa, was a corporation engaged in the sale and distribution of water and in its business constantly used manholes in which were located water pipes and water meters. That on the 25th day of May 1940 while plaintiff was walking with her daughter along the concrete sidewalk in front of 503 East Walnut Street, she stepped on a manhole cover. That it tipped up in a perpendicular position and that she fell into the said manhole, resulting in personal injuries, for which she prayed judgment in the sum of $15,000. She alleged that the defendants were guilty of negligence in that the cast iron lugs or locks on the underside of the said manhole cover had been broken off and destroyed and that as a result thereof the manhole cover was loose and uneven and when stepped upon, it would tip up in more or less of a perpendicular position and that the said manhole cover had been maintained in an unsafe and dangerous condition for more than a year past prior to May 25, 1940.

Separate answer was filed by the Board of Waterworks Trustees of the City of Des Moines in which it denied generally and specifically each and every allegation contained in the plaintiff's petition. The City of Des Moines filed a separate answer in which it denied each and every allegation contained in said petition except that it admitted that it is a municipal corporation organized under the laws of the state of Iowa. Later an amendment was filed to the petition in which damages were sought also against Carl Pears who was at that time the owner of the property locally known as 503 East Walnut Street. He also filed answer in which he denied each and every allegation of plaintiff's petition except that he admitted that the City of Des Moines and the Board of Waterworks Trustees were corporations. Later the plaintiff amended her petition alleging that the City of Des Moines was negligent in failing to take care that the public sidewalk at the location of the manhole did not become in a defective and dangerous condition.

During the trial of the case the plaintiff dismissed without prejudice her cause of action against the defendants Carl Pears and the Board of Waterworks Trustees. Evidence was offered and the city of Des Moines at the close of plaintiff's evidence made a motion for directed verdict, which was overruled, and at the close of all the evidence the motion was renewed and again overruled. A verdict in the amount of $1,900 was rendered against the city of Des Moines. The city of Des Moines has appealed.

It is first argued that the lower court erred in refusing to grant the appellant a new trial upon its motion and its exceptions to instructions because the appellee failed to state or allege in her petition that a notice of claim was served upon the city of Des Moines within the time provided by law and failed to make proof of service of said notice of the time, place and circumstances of said injury within sixty days from May 25 1940, said suit not being commenced until the 18th day of February 1941, and that the petition does not state facts sufficient to state a cause of action, and is defective in the following respects: "a. That the plaintiff wholly failed to state or allege in her petition that a notice of claim was served upon the defendant, City of Des Moines, the record herein showing that this action was commenced more than three months after the occurrence of the alleged injuries to plaintiff and it therefore became a condition precedent to plaintiff's right of recovery to allege the service of a notice of claim within sixty days upon the City of Des Moines after the alleged injury, and further the record is void of any service or attempted service of any notice of claim upon the defendant within sixty days in order to entitle the plaintiff to start suit after three months and within two years."

The complaint against the ruling of the court is based upon the provisions of the statute contained in Section 11007, subdivision 1, of the Code of 1939, which provides that notice of the time, place and circumstances of the injury must be served upon the municipal corporation within 60 days from the happening of the injury, or suit must be commenced within three months. This record shows that at no time did the appellant plead or raise the statute of limitations before the trial court until the motion for a new trial was filed and it is the contention of the appellee, and we think rightly so, that in failing to raise said bar of the statute of limitations as an issue in the case, appellant has waived the said defense. In the case of Belken v. Iowa Falls, 122 Iowa 430, page 431, 98 N.W. 296, page 297, this court said: "* * * we may add that appellant is not in position, in any event, to object at this time to the sufficiency of the notice, or the fact of the service thereof. No such question was made in the trial court, and it cannot be raised here for the first time. The answer was a general denial. If defendant expected to rely upon the limitation statute, it should have pleaded the same. Not having done so, it must be held to have waived the benefit thereof."

In the case of Borghart v. Cedar Rapids, 126 Iowa 313, page 317, 101 N.W. 1120, page 1121, 68 L.R.A. 306, this court said: "Appellant insists that, inasmuch as the claim is for unliquidated damages, and was not filed with the clerk of defendant city within 30 days after the conveyance of the square, the cause of action is barred by the statute of limitations. See Kenyon v. City of Cedar Rapids, , 99 N.W. [ 692], 693. This defense is an affirmative one, and, to be available, the facts constituting it must be pleaded. Harlin v. Stevenson, 30 Iowa 371; Tredway v. McDonald,51 Iowa 663, 2 N.W. 567. By omitting to do so, the defense is deemed to have been waived. Robinson v. Allen, 37 Iowa 27; Brush v. Peterson, 54 Iowa, 243, 6 N.W. 287; Welch v. McGrath, 59 Iowa 519, 10 N.W. 810, 13 N.W. 638. See Reed v. City of Muscatine, 104 Iowa 183, 73 N.W. 579. One of the grounds of the motion to direct verdict was the bar of the statute, and appellant argues that, as a motion is enumerated as a pleading in section 3557 of the Code, the bar of the statute of limitations was raised by the pleadings. That section has reference to written motions filed in making up the issues in the case. The bar of the statute must be made an issue, and it seems hardly necessary to say that a motion to direct a verdict is necessarily based on the issues as previously joined and the evidence adduced bearing thereon. By failing to make the statute of limitations an issue in the case, that defense was waived."

The plea of the statute of limitations is an affirmative defense and the burden of proof upon the pleader. The city of Des Moines filed as its answer a general denial; it did not plead the statute of limitations. The city cannot now complain that its plea of the statute of limitations was ignored by the court when the city ignored said plea throughout the trial and until the filing of its motion for a new trial. There is no merit in its contention.

It is next argued that the lower court erred in admitting evidence of constructive notice of the condition of the manhole cover and in submitting said evidence to the jury, it being the contention of the appellant that there was no competent evidence that the city had constructive notice that the lugs or locks on the said manhole cover were destroyed as alleged by the appellee. Throughout the long and very able argument by the city, it is contended time and again that there was no evidence such as would give the city constructive notice of the alleged defects in the manhole. We turn to the record to ascertain the facts. The manhole cover was in the center of a cement sidewalk in front of a business building in the city of Des Moines. There was a metal collar cemented into the sidewalk and the manhole cover was placed down in the collar and held there by one-half inch to three-fourths inch flange around the inside of the collar. When the manhole cover rested on the flange, the top of the cover was about level with the top of the sidewalk. There were two openings or cuts through the flange. These were there to let two lugs on the bottom side of the cover drop down into the holes through the flange and when the lid is turned around one of the lugs would engage in the side of the collar or flange. This locked the cover so...