Heck v. City of Knoxville

• Decision Date: 11 February 1958
• Docket Number: No. 49331,49331
• Parties: Murel HECK, Appellant, v. CITY OF KNOXVILLE, Appellee.
• Court: Iowa Supreme Court

Page 58

88 N.W.2d 58

249 Iowa 602

Murel HECK, Appellant, v. CITY OF KNOXVILLE, Appellee.

No. 49331.

Supreme Court of Iowa.

Feb. 11, 1958.

Mick, Miller & Murphy, Knoxville, and Steward & Crouch, Des Moines, for appellant.

Johnson & Johnson, Knoxville, and F. S. Fillmore and James A. Lorentzen, Des Moines, for appellee.

GARFIELD, Justice.

Plaintiff's petition as finally amended was in seven counts, seeking damages for injuries sustained in a fall upon a public sidewalk in defendant city. Plaintiff dismissed or abandoned four of the counts and they may be disregarded. The trial court dismissed the other three counts upon defendant's motion, as showing lack of compliance with section 614.1, 1, Code, 1954, I.C.A., providing for written notice to cities of claimed injuries from defective sidewalks. Plaintiff has appealed.

Evidently upon defendant's insistence the trial court ordered the record upon appeal to embrace virtually all pleadings and other proceedings in the district court. Consequently at least half the printed record is not material to the appeal. Rule 340(a), Rules of Civil Procedure, 58 I.C.A., provides the record upon appeal shall consist of an abstract of so much of the record in the trial court as is material to the appeal. Half the cost of printing the record is hereby taxed to defendant.

Plaintiff's Count I claims substantial compliance with Code section 614.1, 1. Count II alleges defendant waived the bar of limitations provided by that section. And Count IV (plaintiff dismissed Count III) alleges defendant is estopped to assert the bar of limitations.

Code section 614.1 states: 'Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared:

'1. * * * Those founded on injury to the person on account of defective roads, bridges, streets, or sidewalks, within three months, unless written notice specifying the time, place, and circumstances of the injury shall have been served upon the county or municipal corporation to be charged within sixty days from the happening of the injury.'

Subsection 3 of 614.1 provides that actions founded on injuries to the person may be brought within two years.

Thus according to 614.1 plaintiff's cause of action became barred in three months after her injuries unless written notice thereof was served upon the city within 60 days after the happening thereof. If the notice were served within the 60 days the action might be brought within two years after the cause accrued. Howe v. Sioux County, 180 Iowa 580, 594, 163 N.W. 411; McCartney v. City of Washington, 124 Iowa 382, 383, 100 N.W. 80. This action was commenced about 7 1/2 months after plaintiff was injured.

Count I contains these allegations claimed to show substantial compliance with 614.1: Defendant city, within a week after the date of said injuries and at its instance, did obtain and accept a written notice signed by plaintiff specifying the time, place and circumstances of her injuries. Said notice was written by a representative of defendant's liability insurance company in the presence of plaintiff in her room at the State University Hospital, who stated he was handling the case on behalf of defendant and the insurance company and requested her to sign a written notice. Plaintiff then and there in compliance with said request informed him of her sidewalk accident on November 2, 1955, at about 5:45 a. m., on the south side of Montgomery Street, in Knoxville, and said representative set forth same on paper as he sat beside her bed. Plaintiff signed said instrument at his request, and he left the room taking said instrument with him.

Count II substantially repeats the first sentence from Count I just set out and adds that defendant: fully investigated the accident, assured plaintiff her claim would be paid, called upon her regularly for three months after she was injured, by its acts and statements lulled plaintiff into a sense of security and therefore waived the bar of limitations provided by 614.1.

In connection with Count II plaintiff's counsel conceded, in effect, in oral argument it was the same liability insurance adjuster who secured the written notice referred to in Counts I and II, who investigated the accident, assured plaintiff her claim would be paid and called upon her regularly for the three months period as alleged in Count II. Evidently this is the extent of the proof plaintiff could offer under this count. We therefore deem it proper to consider the appeal in the light of what was said in argument.

Count IV substantially repeats all of the above allegations of Count I and also alleges: within a week after plaintiff was injured defendant promised to settle plaintiff's claim and from time to time for three months after she was injured continued to call upon and assure her her claim would be paid. These acts and statements lulled her into a sense of security, the representative of defendant's liability insurance carrier stated he was handling the case for defendant and the insurance company, said acts and statements of defendant city were performed and made with intent to deceive plaintiff and to cause her to rely thereon, plaintiff did believe said acts and statements were made in good faith and was induced thereby to believe her claim had been received and accepted by defendant city as a good and valid claim and would be paid by it, by reason of said reliance by plaintiff she did not investigate to determine what would be necessary to perfect and preserve her claim against defendant, it is now estopped to raise as a defense the bar of limitations.

It is apparent if the allegations of plaintiff's petition are true--and we must assume they are for purposes of this appeal--the insurance adjuster was guilty of breach of faith toward plaintiff. Whether plaintiff has any recourse against him or his company is not before us. We are concerned only with the liability of defendant city.

More specifically the questions for decision are whether giving the statement to the representative of defendant's liability insurance carrier is substantial compliance with the requirement of 614.1 that written notice of the injury shall be served upon the city and, if not, whether it may be held to have waived such compliance, or be estopped from asserting noncompliance, by what the insurance representative is alleged to have done here. Although the result is unfortunate for plaintiff we feel compelled to answer both questions in the negative.

I. The parties disagree as to the nature and effect of section 614.1, mainly as to whether compliance with it is a condition precedent to maintenance of such an action. Some of our many decisions involving this statute and its predecessors are not entirely consistent in what they say upon this point.

The statute is mandatory and must be substantially complied with. Tredwell v. City of Waterloo, 218 Iowa 243, 245, 251 N.W. 37; Howe v. Sioux County, 180 Iowa 580, 584, 163 N.W. 411. The burden rests upon an injured plaintiff to plead and prove such compliance. Tredwell case, supra, at page 247 of 218 Iowa, at page 38 of 251 N.W.; Cushing v. City of Winterset, 144 Iowa 260, 262, 122 N.W. 915; Pardey v. Incorporated Town of Mechanicsville, 101 Iowa 266, 269, 70 N.W. 189.

However, the notice required by 614.1 is in no sense jurisdictional. It is for the purpose of preventing the cause of action from becoming barred in three months after the happening of the injury and to provide a method by which prompt information of the time, place and circumstances thereof may be conveyed to the city so an investigation may be had while the facts are fresh. Tredwell v. City of Waterloo, supra, at page 245 of 218 Iowa, at page 37 of 251 N.W.; Ray v. City of Council Bluffs, 193 Iowa 620, 623, 187 N.W. 447; Howe v. Sioux County, supra; Neeley v. Incorporated Town of Mapleton, 139 Iowa 582, 584, 117 N.W. 981.

Some of our cases say in substance service of the notice required by what is now 614.1 is a condition precedent to the right to sue after the expiration of three months. (The time was formerly six months.) Klingman v. Madison County, 161 Iowa 422, 425, 143 N.W. 426; Sollenbarger v. Incorporated Town of Lineville, 141 Iowa 203, 205, 119 N.W. 618; Pardey v. Incorporated Town of Mechanicsville, supra, 101 Iowa 266, 269, 70 N.W. 189. And this is the practical effect of several other Iowa decisions.

But Howe v. Sioux County, supra, 180 Iowa 580, 590, 163 N.W. 411, 415, after reviewing the Sollenbarger and Klingman cases and others, concludes: 'The service of the notice * * * is clearly not a condition precedent to the commencement of the action under out statute, * * *.' This is confirmed in Ray v. City of Council Bluffs, supra, 193 Iowa 620, 623, 187 N.W. 447, and Luke v. City of Keokuk, 202 Iowa 1123, 1125, 211 N.W. 583.

The Luke case and several others, including Bowman v. City of Davenport, 243 Iowa 1135, 53 N.W.2d 249, involve the written statement required by section 420.45, applicable to cities under special charter. Filing such statement is clearly a condition precedent to bringing action--none may be brought at any time unless the statement 'shall be presented to the council or filed with the clerk within thirty days after said alleged injury * * * was sustained.'

Regardless of whether service of the notice required by 614.1 is called a condition precedent to the right to sue after the three months period it is certain no action may be maintained, if commenced after such period, unless the written notice is served within sixty days from the happening of the injury. This is the clear effect of the statute.

Decisions involving 614.1 make it plain substantial compliance therewith is sufficient. This is also the doctrine of many cases from various jurisdictions. Winter v. City of Niagara Falls, 190 N.Y. 198, 82 N.W. 1101, 1102-1103, 123 Am.St.Rep. 540, 13 Ann.Cas. 486; ...