Holman v. Omaha & C. B. Ry. & Bridge Co.

• Decision Date: 31 May 1902
• Citation: 117 Iowa 268,90 N.W. 833
• Court: Iowa Supreme Court
• Parties: HOLMAN v. OMAHA & C. B. RY. & BRIDGE CO.

117 Iowa 268

90 N.W. 833

HOLMAN

v.OMAHA & C. B. RY. & BRIDGE CO.

Supreme Court of Iowa.

May 31, 1902.

Appeal from district court, Pottawattamie county; Walter I. Smith, Judge.

Action to recover damages for personal injuries alleged to have been received by plaintiff while on an electric car operated by defendant company, by reason of the negligence of the employés of said company in carelessly causing the electric car to be started forward suddenly, by reason of which plaintiff was thrown violently against the railing and steps of said car. Verdict on a former trial was set aside by the court, and this action was affirmed. 110 Iowa, 485, 81 N. W. 704. On the next trial the verdict was for plaintiff for $12,000, and from the judgment on such verdict defendant appeals. On suggestion of the death of plaintiff pending this appeal, her administrator has been substituted. Affirmed.Wright & Baldwin, for appellant.

Flickinger Bros., for appellee.

McCLAIN, J.

This suit was instituted more than two years after the injury was received, and under the provisions of Code, § 3447, subd. 3, it was barred, unless something was shown by the plaintiff to take it out of the statute. For this purpose the plaintiff alleged in her petition that at the time of the injury, and subsequent thereto, one Dimmock was general superintendent and manager of the defendant corporation, and on behalf of the defendant, within two years after the injury, he negotiated with plaintiff with reference to a settlement of her claim, and, in the course of such negotiation, represented that the defendant would not interpose the plea of the statute of limitations, and that plaintiff, relying on such representation, failed to bring her action within two years, whereas she would otherwise have done so. With reference to this claim, it is first objected that Dimmock had no authority to waive the statute for defendant; but the court instructed that while the jury would not be authorized in finding such authority in the general employment of Dimmock as general superintendent and manager, nor in any resolutions of the board of directors authorizing him to settle specific claims, yet his authority to negotiate for the settlement of this particular case, and, in connection therewith, to waive the statute of limitations, might be found from evidence showing that he was in the habit, with his principal's knowledge and consent, of negotiating such settlements without previous and specific authority, and without the necessity of subsequent ratification, and that the claims thus settled by him were of such a number and character, and so treated by the defendant, as to indicate a general intention and purpose upon the part of defendant's board of directors to intrust Dimmock generally with authority to make such settlements on his own responsibility. The correctness of this instruction as a statement of law is not questioned, and we find that there was sufficient evidence to sustain a finding by the jury that Dimmock did have the authority to settle the claim in question, and that he did, in connection with negotiations for a settlement had with plaintiff prior to the expiration of the statutory period, represent to her that, if she would delay bringing suit until such negotiations could be completed, the defendant would not interpose the bar of the statute of limitations, which might accrue during such delay. It is not necessary that we set out the evidence, nor is it our practice to do so in such cases.

In support of plaintiff's contention that Dimmock had been allowed to act for defendant in making settlements of claims, the pleadings in an action brought by another claimant against this same defendant for personal injuries were offered in evidence, and received over the objection as to each on behalf of defendant that they were incompetent, immaterial, and irrelevant. It is not now contended in behalf of appellant that the petition or answer were incompetent, but it is urged that the reply contained an averment of matter reflecting on Dimmock, and therefore prejudicial to the defendant in this case, and not in any way material to the issue on which the pleadings were introduced in evidence; but the difficulty is that no objection was made to this particular matter, it being conceded that there were averments in the petition, answer, and reply which were competent evidence in this case. The action of the court in permitting all these pleadings to be introduced cannot be questioned, on account of immaterial matter in the reply, unless the lower court's special attention was called thereto, and some action in that respect was asked.

But an important question of law is involved, to wit, whether such a waiver, even if made with authority, is binding upon the defendant; that is, whether any representation or agreement that the statute of limitations will not be interposed is valid and effectual. On this question there is great conflict in the authorities. The courts have approached it from different points of view, and have reached inconsistent conclusions. In the early New York cases of Insurance Co. v. Bloodgood, 4 Wend. 652, and Gaylord v. Van Loan, 15 Wend. 308, it was held that an agreement not to plead the statute of limitations, made before the expiration of the statutory period, and relied on by the creditor until after the statutory period had expired, operated as an estoppel in pais as against the...