Frazee v. City of Cedar Rapids

• Decision Date: 05 May 1911
• Citation: 131 N.W. 33,151 Iowa 251
• Parties: FRAZEE v. CITY OF CEDAR RAPIDS.
• Court: Iowa Supreme Court

151 Iowa 251

131 N.W. 33

FRAZEE

v.CITY OF CEDAR RAPIDS.

Supreme Court of Iowa.

May 5, 1911.

Appeal from District Court, Linn County; M. P. Smith, Judge.

Action at law to recover damages for personal injuries received by plaintiff, caused by his horse being frightened at a boulder which was allowed to remain in one of defendant's streets. In an amendment to the petition, he also averred that his injuries were caused, not only by defendant's negligence in permitting the boulder to remain in the street, but also by reason of defendant's having negligently made a large ditch or excavation in the street just opposite the boulder, and a steep and dangerous incline about three feet in height along the easterly side of the street, and at or near the boulder. These latter grounds of negligence were pleaded as a second count to an amendment and substituted petition, filed nearly one year after the accident and something like 11 months after notice had been given the city of plaintiff's claim for damages. In this amendment to the petition, plaintiff also asked damages for injuries done his property because of defendant's negligence.

This claim for damage to property and the second count of the petition were stricken on defendant's motion, and the case went to trial on the issues tendered by plaintiff in his original petition and defendant's answer thereto, resulting in a verdict and judgment for defendant, and plaintiff appeals. Reversed.John N. Hughes and Chas. R. Sutherland, for appellant.

John M. Redmond, Wm. Chamberlin, and F. C. Byers, for appellee.

DEEMER, J.

[1] The negligence charged in the original petition is as follows: “That for a long time last past the defendant has permitted, maintained, suffered, and allowed to remain on and upon the westerly side of the street and highway commonly known as the Center Point road, within the said city, the same being the street and highway extending northerly from the intersection of Thirteenth (13th) street and E avenue to the city limits, and at a point upon said street and road between two and twenty rods from the city limits or Maple avenue, a large boulder, rock, and stone about five and one-half (5 1/2) feet in height and of more than ten feet in diameter, and of such shape, size, and character as to cause horses and animals to become unmanageable when being driven along, near, and past the same. That the said city has also permitted, authorized, and allowed various persons, firms, and corporations to paint letters and write upon the said boulder, rock, and stone large signs that tend to so frighten horses when driven along and past the same.”

The accident happened on March 25, 1908, and on April 4, 1908, plaintiff caused a written notice to be given to the city from which we extract the following:

“The undersigned, Milford Frazee, states that, on the 25th day of March, 1908, while driving a horse and buggy and passing along the street and highway commonly known as the Center Point road, the same being the street and highway extending northerly from the intersection of Thirteenth street and E avenue to the city limits, and at a point upon said road between Thirteenth and Thirty-First streets, and between two and ten rods from the city limits, or Maple avenue, the said horse became frightened and unmanageable at a large stone or boulder in and upon said street and highway, and threw the undersigned from the buggy, fracturing some of his ribs and causing him personal and internal injuries.

That the particular negligence of the city of Cedar Rapids which caused the injury and damage to the undersigned was in allowing a stone of about five and one-half (5 1/2) feet and of more than ten feet in diameter to remain in said highway and street, and in such close proximity to the traveled way, as to frighten horses and teams driven along and upon said highway; also in permitting advertising signs to be painted upon the same and in permitting a permanent obstruction in said street and highway.

The particular injury to the undersigned was the fracturing of one or more ribs, injury to his back, spine, and internal and permanent injuries. That by reason of the injury complained of the undersigned has been damaged in the sum of three thousand five hundred dollars ($3,500.00), which amount he hereby makes claim for and against the city of Cedar Rapids, and asks that the same be paid to him.”

On June 3, 1908, plaintiff caused an original notice to be served upon the city which contained the following, among other, statements: “You are hereby notified that, on or before the 23d day of June, A. D. 1908, there will be on file in the office of the clerk of the district court of the state of Iowa, in and for Linn county, the petition of the plaintiff aforesaid, claiming of you, the city of Cedar Rapids, Iowa, the sum of thirty-five hundred dollars, * * * as money justly due from you the city of Cedar Rapids, Iowa, on account of damages received by him on or about the 25th day of March, 1908, by reason of defects and obstructions in a certain street known as the Center Point road, or Thirteenth Street East. For full statement of cause of action, see petition on file.”

No reference was made to any ditch or excavation in the original petition, and no claim was made for damages to property. In an amended and substituted petition, filed as before stated, plaintiff made claim for damages done his property, and also introduced the second count to petition thereto stated. On defendant's motion, this claim for damages to property and the entire second count of the amended and substituted petition were stricken, and timely exception was taken to the rulings. It is claimed that the parts stricken did not introduce new causes of action, and that the rulings were erroneous.

If nothing more than the general statute of limitations were involved, there would be much force in appellant's contention, if we are to follow Gordon v. Railroad, 129 Iowa, 747, 106 N. W. 177, and Thayer v. Coal Co., 129 Iowa, 550, 105 N. W. 1024. But the propositions involve the construction of a special statute reading as follows: “In all cases of personal injury or damage to property resulting from defective streets or sidewalks, or from any cause originating in the neglect or failure of any municipal corporation or of its officers to perform their duties, no suit shall be brought against any such city after three months from the time of the injury or damage, and not then unless a written verified statement of the amount, nature and cause of such injury or damage, and the time and the place where such injury occurred, and the particular defect or negligence of the city or its officers which it is claimed caused or contributed to the injury or damage, shall be presented to the council or filed with the clerk within thirty days after said alleged injury or damage was sustained.” Code, § 1051. Under this section it has been held that there can be no recovery, under an amendment to a petition filed more than three months after the injury, for items of damage not included in the statement of the claim. Ulbrecht v. Keokuk, 124 Iowa, 1, 97 N. W. 1082.

But in Schnee v. Dubuque, 122 Iowa, 459, 98 N. W. 298, we said of this statute: “It seems to us that the notice sufficiently states facts which, if established, might render the city liable. It is not necessary for us to determine how far other facts and circumstances tending to show how the accident happened, and the defective condition of the walk, may be proven under such a notice. If the defective condition of the walk which was described contributed, with other causes, to the resulting injury, the city may be liable, although the other causes were not the result of the fault of the city, provided, of course, they were not due to negligence of the person injured. Eginoire v. Union County, 112 Iowa, 558, 84 N. W. 758;Gould v. Schermer, 101 Iowa, 582, 70 N. W. 697;Hodges v. Waterloo, 109 Iowa, 444, 80 N. W. 523;Langhammer v. Manchester, 99 Iowa, 295, 68 N. W. 688. It must be borne in mind in the construction of this statute that it requires a very prompt notice of the injury and of the defect complained of. It may well be that some material facts are not dscoverable until the witnesses are examined in court. On the trial of the case great liberality is allowed in amendment to make the pleadings cover the particular facts disclosed by the evidence. No amendment of the notice, however, is provided for. It is evident, therefore, that it would be unjust to give to the statute so strict a construction as to exclude proof of all facts relating to the nature and cause of the injury, and the defect or negligence complained of, which are not detailed in the notice. The statute should rather give a liberal construction, to the end that parties having meritorious claims shall not be cut off by mere technicality as to the form of notice required. City of Lincoln v. Pirner, 59 Neb. 634, 81 N. W. 846;Tattan v. Detroit, 128 Mich. 650, 87 N. W. 894.”

The section quoted applies to special charter cities only, and it is contended that, while defendant was such a city when the accident occurred, it had, prior to that time, by vote properly taken, adopted the commission plan of government, although it had not selected its officers under this plan, and did not do so until about two weeks after the accident occurred. The so-called commission plan of government is provided by chapter 48, Acts 32d Gen. Assem., and chapter 64, Acts 33d Gen. Assem. The latter act did not become effective, however, until April 1, 1909, and is not material to any issue in this case.

Section 3 of chapter 48 of the Acts of the 32d General Assembly, which act was in force when plaintiff received his injuries, contains this provision: “All laws governing cities of the first class and not inconsistent with the provisions of this act, and sections 955, 956, 959, 964, 989, 1000, 1023 and 1053 of the Code now...