Howe v. Sioux Cnty.

• Decision Date: 25 June 1917
• Docket Number: No. 31379.,31379.
• Citation: 180 Iowa 580,163 N.W. 411
• Parties: HOWE v. SIOUX COUNTY.
• Court: Iowa Supreme Court

180 Iowa 580

163 N.W. 411

HOWE

v.SIOUX COUNTY.

No. 31379.

Supreme Court of Iowa.

June 25, 1917.

Appeal from District Court, O'Brien County; W. D. Boies, Judge.

Appeal from a judgment in favor of the county for costs in an action for damages on account of injuries resulting from an accident on a county bridge.Affirmed.C. A. Plank and C. E. Gantt, both of Hawarden, for appellant.

Anthony Te Paske, of Sioux Center, and T. E. Diamond, of Sheldon, for appellee.

STEVENS, J.

Estella Howe, plaintiff, brought her suit in Sioux county for damages resulting from an alleged defective approach to a county bridge, causing her to suffer a severe nervous shock and severe injuries to her side, back, hips, and kidneys.The injury is alleged to have occurred June 29, 1914, and on July 20th she caused a claim for damages, in the sum of $1,000, to be filed in the office of the county auditor.On motion of plaintiff, the cause was on January 4, 1916, transferred to O'Brien county for trial.The defendant filed answer in the district court of Sioux county on November 23, 1915.On March 23, 1916, defendant filed an amended answer, pleading, among other defenses, the statute of limitations, basing said plea on the ground that plaintiff's action was not brought within 3 months from the date of the injuries, and that no notice stating the time, place, and circumstances of the injury was served upon defendant within 60 days.On the same day, defendant, by permission of the court, withdrew its answer and filed a demurrer to plaintiff's petition upon the ground that the cause of action was barred by the statute of limitations before suit was brought.The demurrer was sustained.Permission was granted plaintiff to file an amendment to her petition, which she did on April 1, 1916, alleging that plaintiff served proper claim for damages on the defendant county by filing same with the county auditor; that the board of supervisors of defendant county met in session on July 29, 1914, on which date counsel for plaintiff appeared and presented said claim; that the board investigated the merits of the claim, interviewed witnesses and plaintiff's physician; that the officers of defendant at all times treated the notice as sufficient under the statute, made no objection thereto, and were in no wise misled by the failure of the claim or notice to state the time of the accident; that propositions were made by both parties for settlement.Later, plaintiff filed a second amendment to her petition stating the above matters in substance, and in addition thereto alleging that defendant was estopped from setting up the statute of limitations and from objecting to the sufficiency of the notice.Later, defendant filed a motion to strikethe amendments to plaintiff's petition upon the ground stated in the demurrer; that all matters therein set forth were passed upon by the court at the time of ruling upon the demurrer; that the notice was insufficient; that the notice required by statute was not served upon defendant within the time required thereby; and that the amendments were not filed in the time required by the order of the court.The motion to strike was sustained.Plaintiff elected to stand upon the ruling of the court.Judgment was entered against her for costs, from which judgment she appeals.

[1] I. The demurrer to plaintiff's petition and the motion to strike her amendments thereto were sustained upon the ground that her cause of action was barred by the statute of limitations before the same was commenced.To sustain this position, appellee relies upon subdivision 1 of section 3447 of the Supplement to the Code, which, with the first clause of said section, is as follows:

“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.”

Subdivision 3 of said section authorizes actions founded on injuries to the person, whether based on contract or tort, to be brought within two years.It will thus be seen that, under the provisions of subdivision 1, plaintiff's cause of action became barred within 3 months after she received the injuries complained of, unless a written notice specifying the time, place, and circumstances of the injury was served upon defendant within 60 days after the happening of the injury.

It was contended by the defendant in the court below, as it is here, that plaintiff did not serve the required notice upon the defendant within 60 days, and that, because of her failure to do so, her cause of action was barred by the statute of limitations at the end of 3 months after the happening of the injury.The foregoing statute permits actions to be brought within the time designated in the statute, “and not afterwards.”This language is mandatory and required plaintiff to bring suit within 3 months after the happening of the injury, or, if she desired to preserve her right to bring same after 3 months, to serve the written notice above referred to.

[2] A notice was served upon the defendant on or about July 20th following the injury, which occurred on June 29, 1914, which notice clearly designated the place of the accident and the injuries which plaintiff claimed to have received on account thereof, but contained no statement as to the time of the happening of the accident.Appellant strenuously maintains that, while the notice is clearly defective in the particular mentioned, defendant cannot avail itself of such defect for the reasons: (a) That the giving of such notice is not jurisdictional; (b) that the sufficiency of the notice should be determined in view of the circumstances of the case; (c) that defendant treated the notice as sufficient and made a full investigation into the circumstances of the accident and made an offer of compromise; (d) that the object of the statute was fully met; and that defendant was in no wise misled or injured because of the failure of appellant to state the exact time of the injury.

It is evident that the theory of the Legislature in enacting the foregoing statute was that actions based upon injuries resulting from defective roads or bridges be early prosecuted, or that the notice provided for therein be given within 60 days, thereby securing to the county an early opportunity to make full and thorough investigation of the injuries and the accident complained of, to the end that testimony may be preserved and preparation made for the defense of any suit that may be brought against it for damages resulting from such accident.To enable the officers of the county sought to be charged to make such investigation, the notice must specifically state the time of the injury, the place where the same happened, and the circumstances surrounding the transactions.With this information the board of supervisors or other officers of the county are enabled to investigate and determine whether the county is liable and, if so, what course to pursue with reference to the matter of making settlement or preparing to make defense to any suit that may be brought against the county.

The question as to the sufficiency of a given notice has often been before this court, but this is the first time it has been called upon to determine the effect of the omission in the notice of the time of the injury.All of the cases heretofore decided by this court have involved either the question of the sufficiency of the notice to designate the place or the circumstances of the injury.Attention is here called to a few of the decisions of this court.

In Buchmeier v. Davenport, 138 Iowa, 623, 116 N. W. 695, the court said that:

“A notice which in fact points out the place of the accident with sufficient definiteness to reasonably enable the officers of the city to investigate the conditions under which it is alleged to have happened sufficiently complies with the purpose of the statute.* * * The statutory requirement of notice is to be liberally construed, to the end that parties having meritorious claims shall not be cut off by a mere technicality as to the form of notice to be required.”

In Perry v. Clarke County, 120 Iowa, 96, 94 N. W. 454, the court, having under consideration a notice which had been served upon the defendant county, said:

“It is not entirely formal, perhaps, but the substance is there.It gives notice of the accident, and of the time, place, and circumstances, in reasonably specific terms, and was received and filed in time by the officer upon whom notice could properly be served.To hold that this is not a substantial compliance with the statutory requirement would be excessively technical, and serve no just purpose.The fact that the paper is called a ‘petition,’ instead of ‘notice,’ is immaterial.”

In Giles v. City of Shenandoah, 111 Iowa, 83, 82 N. W. 466, the court, in construing the following notice, “You, and each of you, are hereby notified that the undersigned has for collection and adjustment a claim on account of an injury that occurred to Mrs. J. L. Giles, at the intersection of Church street and Clarinda avenue, on the evening of April 21st,” said:

“This did not purport to give any of the circumstances of the injury, as required.So far as conveying information, the accident may as well have resulted from a falling sign, as in Bliven v. City of Sioux City, 85 Iowa, 346[52 N. W. 246], or the breaking down of a bridge, as in Sachs v. City of Sioux City, 109 Iowa, 224[80 N. W. 336], or the running away of a team, as from a defective sidewalk.The object of the statute is to apprise the city authorities of the location of the defect, and the...