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

• Decision Date: 02 February 1900
• Parties: EMMA HOLMAN, Appellant, v. THE OMAHA AND COUNCIL BLUFFS RAILWAY & BRIDGE COMPANY, Appellee
• Court: Iowa Supreme Court

81 N.W. 704

110 Iowa 485

EMMA HOLMAN, Appellant, v. THE OMAHA AND COUNCIL BLUFFS RAILWAY & BRIDGE COMPANY, Appellee

Supreme Court of Iowa, Des Moines

February 2, 1900

Appeal from Pottawattamie District Court.--HON. A. B. THORNELL Judge.

ACTION to recover damages for personal injuries said to have been suffered by plaintiff on or about May 16, 1894, in being thrown from one of defendant's cars. The action was commenced on the nineteenth day of March, 1897. In order to avoid the statute of limitations, plaintiff pleaded that defendant, through its general superintendent, entered into negotiations for a settlement with plaintiff before the statute had fully run, and led plaintiff to believe that her claim would be adjusted and paid without litigation; and that defendant is barred and estopped from pleading the statute. She further pleaded that defendant, through its said agent promised and agreed for his company that it would waive the statute of limitations. Defendant denied the allegations of the petition showing a right of recovery, and pleaded the bar of the statute. There was a trial to a jury, resulting in a verdict for plaintiff. On defendant's motion this verdict was set aside, and a new trial awarded. Plaintiff appeals.

Affirmed.

Flickinger Bros. for appellant.

Wright & Baldwin for appellee.

DEEMER J. GRANGER, C. J., not sitting.

OPINION

DEEMER, J.

The trial court made the following order in passing on the motion for a new trial: "Now, on this fifteenth day of June 1898, this cause coming on for final judgment on the defendant's motion for a new trial, and the court, being well advised in the premises, sustains said motion on the ground that the evidence does not show that W. S. Dimmock, superintendent of defendant company, was authorized to waive the statute of limitations, and that, therefore, the statute of limitations had run against the plaintiff's claim before she commenced her action; and on said grounds a new trial is granted in this cause." Appellant insists that this was tantamount to overruling the motion on all other grounds, and that the only question for decision is whether or not the court erred in sustaining the motion upon the ground indicated. In view of the disposition made of the case, it is perhaps unnecessary to pass upon this point. We may say, however, that it does not appear that any of the grounds of the motion were overruled, and in this condition of the record we do not reverse if any of them were tenable, for the reason that if the court erred in giving its reason for sustaining the motion, such error would be without prejudice. There are, however, but two vital questions in the case: First, the authority of the alleged agent to waive the statute, or to do any act with reference thereto that would preclude the defendant from pleading it; and, second, the legal effect of an agreement to waive the statute, made before the bar had fully accrued. The first is a mixed question of law and fact, and the second purely a question of law. In solving these questions it will be conceded, for the purpose of the case, that plaintiff was injured through the negligence of the defendant at the time she claims. Actions for such injuries are barred by statute unless commenced within two years from the time the cause thereof accrues. Plaintiff's action was not commenced in time, and she cannot recover without proof that defendant has waived the statute of limitations, or been guilty of such conduct as estops it from pleading the same. The evidence shows that defendant is a corporation owning and operating an electric street railway, and that one W. S. Dimmock was manager and general superintendent of that corporation at the time plaintiff received her injuries; that plaintiff wrote to Dimmock about her case, and that in response thereto he called upon plaintiff, and then and there stated, in effect, that the company would settle with her, and take no advantage of her whatsoever; that it would not plead the statute of limitations if she did not bring suit in time; that defendant would give her a large sum in settlement; and that he had a right to go around and see persons that were injured, and had made settlements with persons that were injured. It also appears that plaintiff knew when the statute would bar her claim, and that she relied upon the statements and promises of Dimmock. It further appears that Dimmock visited plaintiff subsequent to that time, and then stated to her that he could not settle because the president of the company was not at the meeting of the board of directors, and he did not know just how much they would allow, but that the company would settle, and would not take advantage of her, even if the claim did outlaw. Most, if not all, of this evidence was denied, and the issue raised thereby was clearly for the jury. But the more important question remains, was the court justified in holding that the evidence failed to show authority in the superintendent to waive the statute? The rule obtaining in cases where the trial court sustains a motion for new trial for want of evidence is well understood. Such motions are addressed to the sound discretion of the trial court, and its action therein will not be interfered with, unless it is manifest that such discretion has been improperly exercised. And this rule is especially applicable where the motion is sustained. Morgan v. Wagner, 79 Iowa 174, 44 N.W. 345; Hopkins v. Knapp & Spalding Co., 92 Iowa 212, 60 N.W. 620; Moran v. Harris, 63 Iowa 390, 19 N.W. 278; Rogers v. Winch, 65 Iowa 168, 21 N.W. 503. In the Moran Case it is said, in effect, that when the trial court determines that the verdict is contrary to the evidence, and ought to be...