McFarland v. City of Muscatine

• Decision Date: 14 May 1896
• Parties: MCFARLAND v. CITY OF MUSCATINE.
• Court: Iowa Supreme Court

98 Iowa 199

67 N.W. 233

MCFARLAND

v.CITY OF MUSCATINE.

Supreme Court of Iowa.

May 14, 1896.

Appeal from district court, Muscatine county; A. J. House, Judge.

Action for damages for injuries sustained by reason of falling upon a defective sidewalk. Trial to a jury, and verdict for plaintiff. Defendant appeals. Affirmed.E. F. Richman, for appellant.

D. C. Cloud, for appellee.

KINNE, J.

1. Plaintiff claims that on the evening of November 16, 1893, and while she, in the exercise of due care, was walking upon a sidewalk in the defendant city, she stepped into a hole in said walk, was thrown down, bruised, and “her spine so badly injured as to render her almost entirely helpless, and, she believes, will incapacitate her from performing any manual labor for her whole life.” The petition contains other necessary allegations as to notice to the city of the defective condition of the walk. The defendant answered, denying that plaintiff had sustained the injury as alleged and denying that it was permanent, and denying that it was caused by defendant's carelessness or negligence,and averring that the injury, if any, was caused by plaintiff's own carelessness and negligence. There was a verdict for plaintiff for $3,000.

2. The appellee, in argument, insists that the cause is not a condition to be determined upon its merits in this court. We do not deem it necessary to go into that question, as no amended abstract has been filed by appellee. Appellant's abstract stands, therefore, as correct. The correctness of appellant's abstract cannot be successfully attacked in argument when no basis therefor has been laid by filing an amended abstract questioning its correctness.

3. Defendant attached to its answer certain interrogatories to be answered by the plaintiff. The plaintiff filed exceptions to all of them, and the exceptions were sustained as to the first, second, third, and sixth, to which ruling the defendant excepted. These interrogatories asked plaintiff when and where she was born, where she had lived from the time she was 12 years of age, and the name of the person or persons with whom she lived, or for whom she worked, and their address; what occupation she was engaged in just prior to coming to Muscatine, and for whom she worked; whether her parents were living; if so, their residence, occupation, and names. It is said the court erred in sustaining plaintiff's exceptions to these interrogations. Code, § 2693, provides: “Either party may annex to his petition, answer, or reply, written interrogatories to any one or more of the adverse parties concerning any of the material matters in issue in the action, the answer to which, on oath, may be read by either party as a deposition between the party interrogating and the party answering.” This section furnishes a method, in addition to those otherwise provided for, procuring the testimony of the opposite party. Such interrogations must, however, be asked concerning material matters which are in issue. Greene v. Woods, 34 Iowa, 573;Mason v. Green, 32 Iowa, 596;Hogaboom v. Price, 53 Iowa 703, 6 N. W. 43. The material matters put in issue by the pleadings in this case were the injury of the plaintiff, its character, extent, and effect, how it occurred, whether plaintiff, by her negligence contributed to produce it, the condition of the walk when the accident occurred, and the knowledge of its condition by the city. Now, while it is possible that answers to the interrogatories excepted to might throw some light upon some one or more of these matters, still such interrogatories are not asked concerning any of the material matters in issue, and hence the exceptions to them were properly sustained. Some of these interrogatories were absolutely immaterial to the determination of any question that could arise in the case; as, for instance, for the birthplace of plaintiff.

4. It is insisted that under the issues no evidence of future disability could be admitted. This claim is based upon the theory that the allegation relating thereto in the petition charges a “belief,” and not a fact. We think it would be carrying technicalities to a great length to hold that the allegation in the petition is insufficient upon which to base a claim for permanent injury because it is averred that, as the plaintiff “believes,” she will be incapacitated from performing manual labor for her life. The word “believe” is evidently used by the pleader in the sense of a conviction of the truth of what follows. It is, when so used, equivalent to saying that she is convinced of the fact that the injury...