Benson v. City of Ottumwa

• Court: Iowa Supreme Court
• Writing for the Court: MCCLAIN, J.
• Citation: Benson v. City of Ottumwa, 143 Iowa 349, 121 N.W. 1065 (Iowa 1909)
• Decision Date: 02 July 1909
• Parties: CHARLES BENSON v. CITY OF OTTUMWA, Appellant

121 N.W. 1065

143 Iowa 349

CHARLES BENSON v. CITY OF OTTUMWA, Appellant

Supreme Court of Iowa, Des Moines

July 2, 1909

Appeal from Wapello District Court.--HON. M. A. ROBERTS, Judge.

ACTION to recover damages for personal injuries alleged to have resulted to the plaintiff from negligence of the defendant in maintaining a sidewalk in an unsafe condition. From a judgment on a verdict in plaintiff's favor, the defendant appeals.

Affirmed.

Gilmore & Moon, for appellant.

Jaques & Jaques and Lloyd Duke, for appellee.

OPINION

MCCLAIN, J.

The accident to the plaintiff resulting in the injuries for which he seeks to recover damages occurred September 23, 1906, on a sidewalk in the defendant city. The plaintiff, who was then a minor, instituted his action through his father as next friend within three months, as required by Code, section 3447, paragraph 1, when no written notice specifying the time, place and circumstances of the injury has been served upon the corporation within sixty days from the happening of such injury. In the petition filed by the father as next friend it was alleged that the minor suffered severe injuries to his back, shoulder and side and by the fracture of his left leg, resulting in physical pain and anguish and a crippled condition, and that he had great expense in the employment of a physician, to wit, in the sum of about $ 100, and damages were asked in the sum of $ 1,000. More than a year after the filing of the original petition an amendment thereto was filed, in which it was alleged that the said minor had attained his majority by marriage, and substitution of himself as plaintiff in place of his father as next friend was asked. The action was thereafter treated as brought by this plaintiff. In a second amendment there was a prayer for increased damages, in which loss of earnings and the expense of board and nursing during the five months following the injury were included. In a third amendment to the petition it was alleged that for more than one year prior to the action plaintiff was emancipated by his parents, and that he was engaged in working for strangers; his father having no control over his earnings or wages. In a fourth amendment it was alleged that, before the institution of the action, plaintiff's father had assigned to him all claims that he had or could make against the defendant city on account of injuries received by the plaintiff. On issues raised by answer in denial of the essential allegations of the plaintiff's petition there was a trial to the jury and a verdict for the plaintiff in the sum of $ 350.

Errors are assigned in the overruling of defendant's motions to strike portions of the original petition and the several amendments thereto, in the refusal of the court to exclude evidence as to the damages suffered by plaintiff on account of loss of earnings, expense of nursing and employment of physicians, as to the alleged emancipation of the plaintiff and as to the assignment by the plaintiff's father to him of the right to recover expenses of physicians and nurses and in so instructing the jury as to allowing the plaintiff to recover for the elements of damages above specified.

The sole question presented on this appeal is as to whether the amendments to plaintiff's petition, filed after the expiration of three months from the time when the injuries were received by plaintiff, presented any other or different cause of action from that set up in the original petition, so that they were barred by the statutory provision requiring the action to be brought within three months, where no written notice of the time, place and circumstances of the injury has been served upon the city within sixty days from the happening of the injury. We are clearly of the...