Hearn v. City of Waterloo
| Decision Date | 19 November 1918 |
| Docket Number | 32227 |
| Citation | 169 N.W. 392,185 Iowa 995 |
| Parties | J. V. HEARN, Appellee, v. CITY OF WATERLOO, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED APRIL 10, 1919.
Appeal from Black Hawk District Court.--C. W. MULLAN, Judge.
ACTION for damages for personal injuries sustained upon the streets of the defendant. There was a verdict for the plaintiff, and judgment thereon. Defendant appeals.
Affirmed.
Burr A Brown and E. H. McCoy, for appellant.
C. J Rudolph and Reed, Tuthill & Reed, for appellee.
The accident in question occurred on the night of June 3, 1916, on one of the streets of the defendant city. The plaintiff was walking with others upon the sidewalk, and was on the outer edge thereof. By inadvertence, he stepped into a hole which extended to the very edge of the sidewalk. The hole was about 20 inches by 12 inches and about 2 feet deep. He sustained severe injuries as a result of his fall therein. There was evidence that the hole had existed for a couple of weeks. Plaintiff was not aware of its existence. There was a street light near by, but the shadows of trees were cast over the hole, to a greater or less extent. The hole also contained some grass and rubbish, which tended to prevent its discovery in the dark.
I. The first question presented for our consideration by the appellant is that of the statute of limitations. Among other defenses, the defendant pleaded that the action was barred by the statute of limitations, because it was not commenced within three months from the time of the happening of the injury. The injury occurred on the night of June 3, 1916. The petition was filed on September 7th. The original notice and the return thereon were not introduced in evidence by either party. It appears from the abstracts that practically no attention was given to the statute of limitations by either party, upon the trial of the case. The facts pertaining thereto came into the record later, upon a hearing of the defendant's motion for a new trial and the plaintiff's resistance thereto. The defendant appeared to the action and filed a demurrer, which was overruled. Thereupon, the defendant filed an answer, and later, an amended and substituted answer. In none of these pleadings was there any reference to the statute of limitations. A later amendment, filed on the eve of trial, pleaded the statute. The abstracts indicate that the subject was not again mentioned during the trial proceedings. The defendant filed a motion, at the close of the plaintiff's evidence, to direct a verdict. It filed a like motion at the close of all the evidence. The bar of the statute was not made a ground of either motion. It submitted requested instructions to the court, but the bar of the statute was not mentioned therein. The subject was not mentioned in the instructions given by the court on its own motion. The defendant presented detailed exceptions to such instructions, which exceptions included no reference to the bar of the statute. After verdict, the defendant filed a motion for a new trial, wherein it emphasized greatly the bar of the statute of limitations. In resistance to this motion, the plaintiff made a showing that the original notice was placed in the hands of the sheriff on September 2, 1916, with instruction that it be immediately served; that it was actually served on September 5th; and that the original notice and the return of the sheriff thereon were filed on September 7th. It was further made to appear that this notice had become lost from the files, and plaintiff filed a counter motion for a substitution of the lost record, and produced an alleged carbon copy of the lost paper. Its contents and the return thereon were proved by the affidavit of the sheriff, and by that of the attorney. The motion for a new trial was thereupon overruled by the trial court. No specific ruling appears upon the plaintiff's counter motion for a substitution of the lost record.
The defendant's contention before us is that, inasmuch as it pleaded the statute of limitations, and inasmuch as it appeared upon the face of the pleadings and record that the action was barred, the burden was upon the plaintiff to prove that his action was begun by the placing of notice in the hands of the sheriff within three months from the time of the injury.
It has frequently been held that the plea of the statute of limitations is an affirmative defense, and that the burden of proof is upon the pleader. The defendant pleaded that the action was not commenced within three months. We see no reason, from this record, why it should not be required to prove that it was not so commenced. It does not, in fact appear upon the face of the petition or upon the face of the record, as contended by the defendant, that the action was not commenced within three months. The argument for defendant is that, inasmuch as the original notice, with the return of the sheriff thereon, is not before us, we must, therefore, presume that the action was not commenced until the date of the defendant's appearance thereto. Particular emphasis is laid upon the holding in the case of Dolan v. Burlington, C. R. & N. R. Co., 129 Iowa 626, 105 N.W. 834. It is assumed that we there held that, in the absence of proof by the plaintiff that he served his notice in...
To continue reading
Request your trial