DeWall v. Prentice

• Decision Date: 18 December 1974
• Docket Number: No. 56126,56126
• Parties: Herman W. DeWALL, Appellee, v. Glenn Melvern PRENTICE and Kenneth Dean Scheller, Appellants.
• Court: Iowa Supreme Court

Page 428

224 N.W.2d 428

Herman W. DeWALL, Appellee, v. Glenn Melvern PRENTICE and Kenneth Dean Scheller, Appellants.

No. 56126.

Supreme Court of Iowa.

Dec. 18, 1974.

Whitfield, Musgrave, Selvy, Kelly & Eddy by Timothy J. Walker and David L. Phipps, Des Moines, for appellants.

McCullough Law Firm, Sac City, for appellee.

Considered en banc.

RAWLINGS, Justice.

Plaintiff's action for damages arising out of a tractor-truck collision resulted in judgment on jury verdict adverse to defendants and they appeal. We affirm in part, reverse in part.

July 14, 1969, a tractor operated by plaintiff DeWall was struck from the rear by a truck owned and driven by defendants Prentice and Scheller, respectively. DeWall was seriously injured.

July 9, 1971, plaintiff caused to be filed a damage-seeking action against both defendants. The same day attendant original notices were delivered to the Pocahontas County Sheriff with instructions they be served on defendants in Rodman, Iowa. The process-armed deputy sheriff thereupon contacted a banker in West Bend, a community located near Rodman. He thus learned Prentice lived in New London, Minnesota and Scheller resided in Chewelah, Washington. By letter bearing date July 16, 1971, the sheriff so advised DeWall's present counsel.

July 26, 1971, plaintiff's attorney delivered to the Iowa Commissioner of Public Safety original notices directed to both nonresident defendants.

July 30, 1971, a notice of such filing was duly forwarded by plaintiff's counsel to each defendant at his last above stated residence.

Thereafter trial court overruled defendants' statute of limitations based motion to dismiss plaintiff's action, and as previously disclosed the case proceeded to trial.

Other relevant facts will be later set forth as they relate to these issues asserted in support of a reversal: (1) Holding the defense-asserted statute of limitations was barred by the plaintiff-invoked equitable estoppel doctrine; (2) submitting jury instructions under which plaintiff could be allowed recovery for loss of income, loss of earning capacity, and loss of support to his children and spouse; (3) instructing the jury regarding loss of plaintiff's income and earning capacity absent adequate evidential support. These assignments will be considered in the order presented.

I. It is facially apparent no legal action was effectively commenced by plaintiff against defendants within the limitation period

specified in The Code 1971, Section 614.1, which provides in relevant part:

'Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specifically declared:

'1. '* * *

'2. Injuries to person or reputation--relative rights--statute penalty. Those founded on injuries to the person * * * within two years.'

In addition to the aforesaid motion to dismiss, defendants later asserted by answer, as an affirmative defense, the above quoted limitation statute.

July 9, 1971, plaintiff caused a petition to be filed in Pocahontas District Court. Original notices were promptly given the sheriff for service on defendants. But since neither Prentice nor Scheller then resided in that jurisdiction the notices were not delivered to 'the sheriff of the proper county.' See Iowa R.Civ.P. 48--49; Fulmer v. Debel, 216 N.W.2d 789, 791--792 (Iowa 1974) and citations. See also Code § 616.18. Thus, no action was actually commenced by the aforesaid July 9 proceedings.

Additionally the above noted nonresident motorist notices were filed with the Public Safety Commission July 26, 1971, and mailed to defendants July 30, 1971, all of which was beyond the Code § 614.1(2) limitation period. See also Code § 321.501.

II. So the problem posed is whether plaintiff made such showing of circumstances constituting equitable estoppel as to bar application of the limitation act quoted above.

At the outset it is conceded equitable estoppel may, under proper circumstances, preclude a limitation of action defense. Demonstrably we said in L & W Construction Co., Inc. v. Kinser, 251 Iowa 56, 66--67, 99 N.W.2d 276 (1959):

'The doctrine of equitable estoppel is applicable to statutes of limitations. Holman v. Omaha & C.B. Ry & Bridge Co., 117 Iowa 268, 90 N.W. 833, 62 L.R.A. 395 (94 Am.St.Rep. 293); In re Estate of Carpenter, 210 Iowa 553, 231 N.W. 376; Swift v. Petersen, 240 Iowa 715, 37 N.W.2d 258.

"A statute cannot stand in the way of waiver or equitable estoppel when the facts demand their application in the interest of justice and right.' Kallock v. Elward, 118 Maine 346 (348), 108 A. 256, 258, 8 A.L.R. 750 (752).

"A defendant may be estopped by his agreement, representations, or conduct from asserting the bar of the statute of limitations. * * * However, before the doctrine of estoppel to plead limitations may be successfully invoked on the basis of fraud, it is essential to show existence of the essential elements of such an estoppel, * * * and in this connection it has been held that plaintiff is under a duty to exercise reasonable care and diligence.' 53 C.J.S. Limitations of Actions § 25 (pages 962, 965).'

See also 51 Am.Jur.2d, Limitation of Actions, § 431.

This court also stated, in Walters v. Walters, 203 N.W.2d 376, 379 (Iowa 1973):

'The essential elements of equitable estoppel or estoppel In pais are:

'(1) a false representation or concealment of material facts; (2) lack of knowledge of true facts on part of actor; (3) intention that it be acted upon; and (4) reliance thereon by the party to whom made, to his prejudice and injury.'

And in Holden v. Construction Machinery Company, 202 N.W.2d 348, 355--356 (Iowa 1972) is this statement:

'The elements of equitable estoppel are well established. There must be conduct amounting to false representation or concealment, and a party relying thereon must be thereby misled into doing or failing to do something he would not otherwise have done or omitted. A party asserting this defense has the burden to establish all essential elements thereof by clear, convincing and satisfactory proof. Nothing less will suffice. See Holsteen v. Thompson, 169 N.W.2d 554, 558--559 (Iowa 1969); Janssen v. North Iowa Conf.Pen., Inc. of Methodist Church, 166 N.W.2d 901, 906--907 (Iowa 1969); McClintock on Equity, § 31 at 79--80 (2d ed. 1948); 28 Am.Jur.2d, Estoppel and Waiver, §§ 26--29, 33--44; 31 C.J.S. Estoppel §§ 59, 67--77.

'Also, despite defendants' claim to the contrary, one must knowingly take a position with intention it be acted upon, and that there be reliance thereon by another to his prejudice. See Ames Trust and Savings Bank v. Reichardt, 254 Iowa 1272, 1280, 121 N.W.2d 200 (1963); 28 Am.Jur.2d Estoppel and Waiver, § 78; 30A C.J.S. Equity §§ 118, 128.'

See also Mizer v. State Automobile & Casualty Underwriters, 195 N.W.2d 367, 371 (Iowa 1972).

Then in Shellhorn v. Williams, 244 Iowa 908, 918--919, 58 N.W.2d 361 (1953), we approvingly quoted this from Linger v. Harlan Fuel Co., 298 Ky. 216, 182 S.W.2d 657, 659:

"(O)ne may not omit to avail himself of readily accessible sources of information concerning particular facts, and thereafter plead as an estoppel the silence of another who has been guilty of no act calculated to induce the party claiming ignorance to refrain from investigating."

To like effect is this comment in Johnston v. State Bank, 195 N.W.2d 126, 130 (Iowa 1972):

'A person whose own conduct or default got him into his predicament cannot successfully urge estoppel. 28 Am.Jur.2d, Estoppel & Waiver, § 79 at 719; 31 C.J.S. Estoppel § 75 at 452--455.'

Significantly, the doctrine of equitable estoppel is designed to prevent fraud and injustice and may come into play whenever a party cannot in good conscience gainsay his prior acts or assertions. See Dart v. Thompson, 261 Iowa 237, 243--244, 154 N.W.2d 82 (1967). See also McClintock on Equity, § 31 at 79--80 (2d ed. 1948).

III. Mindful of the foregoing we look again to the record.

At time of the July 14, 1969 accident the name Glenn Melvern Prentice, followed by Rodman, Iowa, was printed on the involved truck. That afternoon Prentice visited with plaintiff in his home. At the same time an agent for Prentice's insurance carrier left a slip of paper with plaintiff on which had been written, in material part: 'Glenn M. Prentice, Rodman, Iowa, Policy No. 11 = 415448.'

Subsequently, on several occasions, an adjuster for said insurer called on plaintiff and unsuccessfully discussed the matter of settlement.

Moreover, Prentice unquestionably registered the accident-involved truck in Palto Alto County, with Rodman, Iowa, then being his declared bona fide residence and mail address. See Code § 321.20(1).

Sometime in the fall of 1969 plaintiff contacted Ralph Bastian, a Fort Dodge attorney. DeWall then delivered to Mr. Bastian two accident report forms showing Glenn Melvern Prentice, Rodman, Iowa, was the truck owner and Kenneth Dean Scheller the operator thereof at time of the accident. See Code §§ 321.266--321.271. As best we can determine these forms were neither prepared nor signed by Prentice. One was filed by State Trooper Arlon Meyer; the other having been executed by Scheller giving Rodman, Iowa as his and Prentice's address. Attorney Bastian did nothing regarding the instant case until June 22, 1971, when he again conferred with DeWall. Mr. Bastian then discovered he had previously represented Prentice's insurance carrier. Plaintiff was resultantly told by Bastian he could not take the case but would endeavor to effect a settlement with Prentice's insurer. In event, however, that goal was not achieved DeWall would have to engage other counsel. Bastian's efforts proved to be futile and about July 2, 1971, he contacted attorney Thomas McCullough.

In May or June of 1971, Claire Carlson, a lawyer associated with Bastian, was asked by the latter to prepare a workup on the DeWall file for possible use in event the case should be later referred to...