Lunday v. Vogelmann

• Decision Date: 19 December 1973
• Docket Number: No. 56088,56088
• Citation: 213 N.W.2d 904
• Parties: Emmett LUNDAY, Jr., a minor, by his father and next friend, Emmett Lunday, Sr., Appellant, v. Henry VOGELMANN et al., Appellees.
• Court: Iowa Supreme Court

Page 904

213 N.W.2d 904

Emmett LUNDAY, Jr., a minor, by his father and next friend, Emmett Lunday, Sr., Appellant, v. Henry VOGELMANN et al., Appellees.

No. 56088.

Supreme Court of Iowa.

Dec. 19, 1973.

Raymond O. Snook, of Minnich & Neu, Carroll, for appellant.

P. D. Furlong, Sioux City, for appellee Denison Community School District.

Robert Kohorst, of Louis, Moore & Kohorst, Harlan, for appellee Coty of Denison.

Considered en banc.

McCORMICK, Justice.

The issue in this appeal is whether the notice of claim requirement of Code § 613A.5, relating to tort liability of governmental subdivisions, is unconstitutional as a denial of equal protection of the law. Trial court held it is not. We dismiss the appeal in part and affirm in part.

Plaintiff Emmett Lunday, Jr., is a minor who brings this action by his father Emmett Lunday, Sr. Defendant Henry Vogelmann is a school teacher employed by defendant Denison Community School District. The accident involved is alleged to have happened on property owned by the school district and leased to defendant City of Denison, Iowa.

Plaintiff's petition, filed July 5, 1972, was in two divisions. For cause of action against defendants Vogelmann and school district, plaintiff alleged in Division I of his petition that on September 5, 1969, he was severely injured when run over by a lawnmower while chasing a ball during a physical education class supervised by Vogelmann he alleged that negligence of those defendants in four respects relating to supervision and safety precautions proximately caused his injury and damages. For cause of action against the City, plaintiff alleged in Dividion II of this petition that his injury and damages were proximately caused by negligence in three respects of the City's employee in operation of the lawnmower.

In response to a motion for more specific statement plaintiff amended his petition to acknowledge he did not serve notice of his claim on either the school district or the City within 60 days after his injury. In their answers the school district and City admitted the date of injury and plaintiff's failure to give notice of claim and affirmatively alleged the action is barred by failure to give such notice or to commence the action within three months of the date of injury as required by Code § 613A.5. By reply plaintiff alleged the notice requirement of Code § 613A.5 is unconstitutional. Subsequently plaintiff moved for adjudication of law points under rule 105, Rules of Civil Procedure, to secure an adjudication of the constitutionality of that notice requirement.

Trial court sustained the constitutionality of the statute and dismissed plaintiff's petition against the school district and City. This appeal by plaintiff followed.

I. Finality of the judgment. Under rule 331, R.C.P., only final judgments or decisions may be appealed as a matter of right. Interlocutory appeals may be taken only with permission. Rule 332, R.C.P. We have no jurisdiction to entertain an appeal where no final judgment was entered and no permission to appeal from an interlocutory order was obtained. Johnson v. Iowa State Highway Commission, 257 Iowa 810, 812, 134 N.W.2d 916, 917 (1965).

Here the case was dismissed as to the school district and City but not as to Vogelmann. We discussed the issue of finality of a judgment dismissing an action against one or more but not all defendants in Bennett v. Ida County, 203 N.W.2d 228 (Iowa 1972). Based upon what is said there we believe the claimed liability of the school district and Vogelmann is so closely related that the judgment dismissing the petition as to the school district is interlocutory. Id. at 232--234; Reuter v. City of Oskaloosa, 253 Iowa 768, 771--773, 113 N.W.2d 716, 718--719 (1962). But we believe the claimed liability of the City and Vogelmann is separated by a clear line of demarcation making the judgment dismissing the petition as to the City final. McGuire v. Cedar Rapids, 189 N.W.2d 592, 598 (Iowa 1971).

The appeal must be dismissed as to the school district. This of course makes no practical difference because we affirm the dismissal of the petition as to the City on the merits.

II. Constitutionality of Code § 613A.5. Plaintiff contends the notice provisions of Code § 613A.5 deny him equal protection of the law under Amendment 14 to the United States Constitution. He does not assert his minority tolled the notice requirement. That remains an open question under our statute. See Vermeer v. Sneller, 190 N.W.2d 389, 395--397 (Iowa 1971). Plaintiff relies upon his minority only in alleging that because Code § 613A.5 is unconstitutional, the applicable period of limitations is Code § 614.8 which extends the limitations in Code chapter 614 for a minor until one year after he reaches majority.

The sole issue for decision here is whether Code § 613A.5 does deny plaintiff equal protection of the law. That section is:

'613A.5 Limitation of actions. Every person who claims damages from any municipality for or on account of any wrongful death, loss or injury within the scope of section 613A.2 shall commence an action therefor within three months, unless said person shall cause to be presented to the governing body of the municipality within sixty days after the alleged wrongful death, loss or injury a written notice stating the time, place, and circumstances thereof and the amount of compensation or other relief demanded. Failure to state the amount of compensation or other relief demanded shall not invalidate the notice; providing, the claimant shall furnish full information regarding the nature and extent of the injuries and damages within fifteen days after demand by the municipality. No action therefor shall be maintained unless such notice has been given and unless the action is commenced within two years after such notice. The time for giving such notice shall include a reasonable length of time, not to exceed ninety days, during which the person injured is incapacitated by his injury from giving such notice.'

Plaintiff argues the statute denies him equal protection because it unreasonably puts victims of governmental torts in a different class than victims of private torts. Tort claims against governmental subdivisions are subject to the special notice requirement whereas tort claims against private persons are not.

The nature of the burden upon one attacking a statute on equal protection grounds depends upon whether the classification is one subject to close judicial scrutiny or traditional equal protection analysis. Since the classification here is not based upon sex, race, alienage or national origin and does not involve fundamental rights, it is subject to the traditional equal protection standard. See Frontiero v. Richardson, 411 U.S. 677, 681, 93 S.Ct. 1764, 1768, 36 L.Ed.2d 583, 589 (1973). Under that test the classification must be sustained unless it is patently arbitrary and bears no rational relationship to a legitimate governmental interest. Id. It does not deny equal protection simply because in practice it results in some inequality; practical problems of government permit rough accommodations; and the classification will be upheld if any state of facts reasonably can be conceived to justify it. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, 501--502 (1970). The legislature has wide discretion in deciding classifications. Cedar Mem. Park Cem. Ass'n v. Personnel Assoc, Inc., 178 N.W.2d 343, 350 (Iowa 1970). Our view of the wisdom of the legislation is irrelevant. Peel v. Burk, 197 N.W.2d 617, 619 (Iowa 1972).

The purpose of the notice requirement of § 613A.5 is to provide a method for prompt communication of time, place and circumstances of injury so the municipality can investigate while facts are fresh. Norland v. Mason City, 199 N.W.2d 316, 318 (Iowa 1972). The basis for disparate classification of victims of governmental and private torts is explained in Sprung v. Ramussen, 180 N.W.2d 430, 433 (Iowa 1970) as a condition placed by the legislature upon its abolition of sovereign immunity:

'Where, as here, the legislature has created a new right of action, it made a legislative judgment that the cause should be brought within a specified time. This difference doubtlessly arises from the fact the statute we are here interpreting is in derogation of sovereign immunity and that the legislature might, and did, properly restrict and limit the application of the statute.'

We recognized the same legislative prerogative in relation to its abrogation of state tort immunity in Graham v. Worthington, 259 Iowa 845, 863--864, 146 N.W.2d 626, 638 (1966).

The fundamental motivation attributed to legislatures which have enacted such notice requirements is that where a governmental subdivision is involved the public has an interest it does not have as to claims against private persons in seeing prompt and thorough investigation of claims is made. This protects the public treasury from stale claims. Thomann v. City of Rochester, 230 App.Div. 612, 245 N.Y.S. 680 (1930). It permits prompt settlement of meritorious claims and facilitates planning of municipal budgets. King v. Johnson, 47 Ill.2d 247, 265 N.E.2d 874 (1970). The notice requirement also ensures that notices reach the public officers with responsibility to deal with them and in many instances should enable such officers to remedy defects in far-flung municipal property before other persons are injured.

We are unable and unwilling to say § 613A.5 is patently arbitrary and bears no rational relationship to a legitimate governmental interest. Plaintiff has not met his burden to prove the statute is unconstitutional.

In addition to the authorities cited, support for this conclusion is found in other cases involving similar statutes. See Dias v. Eden Township Hosp. Dist., 57 Cal.2d 502, 20 Cal.Rptr. 630, 370 P.2d 334 (1962); McCann v. City of Lake Wales, 144 So.2d 505 (Fla.1962); Tonn v. City...