Montgomery v. Polk County, 62298

• Citation: 278 N.W.2d 911
• Decision Date: 30 May 1979
• Docket Number: No. 62298,62298
• Parties: May MONTGOMERY, Appellant, v. POLK COUNTY, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 911

278 N.W.2d 911

May MONTGOMERY, Appellant, v. POLK COUNTY, Iowa, Appellee.

No. 62298.

Supreme Court of Iowa.

May 30, 1979.

Michael J. Cunningham of Bertroche & Hagen, Des Moines, and Robert J. Bothe of Garvey, Nye, Crawford, Kirchner & Moylan, Omaha, Neb., for appellant.

Dan L. Johnston, Polk County Atty., and Thomas P. Lenihan, Asst. Polk County Atty., for appellee.

Considered en banc.

UHLENHOPP, Justice.

The decisive issue in this appeal is whether the discovery rule applies to cases under our Municipal Tort Claims Act, chapter 613A, The Code 1977. See Chrischilles v. Griswold, 260 Iowa 453, 150 N.W.2d 94 (1967).

I. Although defendant Polk County, Iowa, presses other evidence to our attention, the following may be taken as established for purposes of the appeal. On November 11, 1976, officers arrested Linda Brewer on a charge of possession of a controlled substance with intent to deliver, and cash bail was set at $2000. Plaintiff May Montgomery, Brewer's friend from Omaha, Nebraska, posted the bail, took a receipt from the police, and obtained Brewer's release. The next day personnel of the clerk of court issued a receipt to Brewer for $2000.

At some point the district court sustained a motion to suppress evidence in the criminal case against Brewer.

On December 16, 1976, in writing, Brewer assigned the cash bail to Attorney Robert A. Wright. On January 17, 1977, the assignment was filed with the clerk.

On January 18, 1977, on the recommendation of the prosecutor, the district court dismissed the criminal charge against Brewer. On the same day the clerk paid the cash bail of $2000 to Mr. Wright.

According to her testimony, Montgomery came to Des Moines in May 1977 and for the first time learned that the charge against Brewer had been dismissed and the cash bail had been paid to Mr. Wright. She conferred with the county attorney, who suggested that she consult private counsel.

On September 29, 1977, Montgomery commenced the instant action to recover $2000 and interest from Polk County and the City of Des Moines, Iowa. She later dismissed the case as against the City.

After trial the court held for the county on the ground that Montgomery sued too late, citing section 613A.5. The court certified the case for appeal, Iowa R.App.P. 3, and Montgomery appealed.

II. The way Montgomery presented her claim is important to the analysis of the case. She did not proceed against the Clerk for failure to pay over on demand. Instead she proceeded under the Municipal Tort Claims Act against the Public body for the clerk's negligence in paying the money to the wrong person on January 18, 1977. The appropriate decisions therefore are those dealing with the Municipal Tort Claims Act.

Under section 613A.1(1) of our Municipal Tort Claims Act, "municipality" includes a county. Section 613A.5 of the act provides:

Every person who claims damages from any municipality or any officer, employee or agent of a municipality for or on account of any wrongful death, loss or injury within the scope of section 613A.2 or section 613A.8 (imposing tort liability and duty to defend) or under common law shall commence an action therefor within six 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 time or place or circumstances or the amount of compensation or other relief demanded shall not invalidate the notice; providing, the claimant shall furnish full information 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.

Montgomery did not sue within six months after the clerk "negligently" paid Wright, nor did she give notice within sixty days after the clerk paid Wright so as to extend the time to sue to two years. She was not incapacitated by injury so as to extend the sixty days to give notice.

III. Montgomery therefore faces the limitation in section 613A.5. We need not speculate about the various avenues she might have taken, endeavoring to avoid that section. She selected her own route and set it out in her brief. She proceeds as follows: (1) the county was negligent in paying the money to the wrong person, (2) this breach of the duty of care occurred on January 18, 1977, when the county paid Mr. Wright, (3) Montgomery did not Discover the breach until May 1977, and (4) her cause of action against the county did not Accrue until the discovery, citing Chrischilles v. Griswold, 260 Iowa 453, 150 N.W.2d 94 (1967). She states in her brief:

When the Defendant released and paid over the Plaintiff's money to another person, notwithstanding the fact that the Defendant had given Plaintiff a receipt acknowledging receiving the money from Plaintiff, the Defendant fell short in its duty of care to Plaintiff And she was damaged. (Emphasis added.)

She then spells out her reliance on Chrischilles in this language:

After she became aware that the Defendant had erroneously paid the money over to another person, the Plaintiff was then faced with an election: whether to affirm the contract which Plaintiff and Defendant entered into when she deposited the bail money, thereby waiving the tort, and proceed in an action ex contractu; or, abandon the contract and proceed in an action ex delicto. Electing to proceed ex delicto, the question becomes: when did Plaintiff's cause of action Accrue ?

The contract which gives rise to this lawsuit was executed on November 11, 1976, when the Plaintiff posted the Two Thousand Dollars ($2,000.00) cash bond and received a receipt acknowledging the money from the Defendant. Plaintiff did not become aware of Defendant's negligence until on or about May 1, 1977, and this is the date on which Plaintiff's cause of action Accrued. "The general rule is that a cause of action accrues when the aggrieved party has a right to institute and maintain a suit." Chrischilles v. Griswold, 260 Iowa 453, 150 N.W.2d 94, 99 (1967). Plaintiff did not become aware of Defendant's negligent performance and the consequent injury to her interest until on or about May 1, 1977. This is the first time Plaintiff was aware that the money she had deposited with the Defendant had been paid to someone else. This is the first time Plaintiff was aware that she had received an injury to her interest. This is the first time she could have pursued an action to a successful result.

It is true that Plaintiff's injury is traceable to a negligent act of Defendant on or about January 19, 1977. However, Plaintiff was unaware of any injury to her interest until May 1, 1977, and it was not until this date that her cause of action Accrued. "If an injured party is wholly unaware of the nature of his injury and the cause of it, it is difficult to see how he may be charged with a lack of diligence or sleeping on his rights." Chrischilles v. Griswold, 260 Iowa 453, 150 N.W.2d 94, 100 (1967). (Emphasis added.)

She continues in her brief:

As summarized in Chrischilles v. Griswold, id. the recent trend has been toward "the discovery rule." This rule simply stated is that a statute does not commence to run until the date of discovery, or the date when, by the exercise of reasonable care, Plaintiff should have discovered the wrongful act. "The question in any given case is not, what did Plaintiff know of the injury done him? but, what might he have known, by the use of the means of information within his reach, with the vigilance which the law requires of him? We now believe the better rule to be that a cause of action based on negligence does not accrue until Plaintiff has in fact discovered that he has suffered injury or by exercise of reasonable diligence should have discovered it and are persuaded the rationale of the discovery doctrine should be adopted." Chrischilles v. Griswold, id., (150 N.W.2d) 100 (emphasis added). Applying the discovery rule to the facts of this case Plaintiff discovered that she suffered an injury, that the Defendant had breached its duty of care to her and her money would not be returned to her on or about May 1, 1977. This is the date that the Statute of Limitations given by Code of Iowa § 613A.5 began to run, thereby making Plaintiff's Petition timely filed, and not barred as held by the Trial Court.

These arguments in Montgomery's brief are in line with paragraphs four and five of the negligence count of her petition:

4. That as a result of the receipt of the cash bond by the Defendants, the Defendants owed a duty of care to the Plaintiff to see that said cash bond was returned to the Plaintiff once the conditions of bail were met by one Linda Brewer.

5. That Defendants breached that duty of care owed to the Plaintiff when on or about January 18, 1977, said cash bond was negligently released to someone other than the Plaintiff.

The county's brief contains the same understanding of the claim Montgomery makes that the "cause of action did not Accrue until plaintiff 'discovered' her injury on May 5, 1977." (Emphasis added.)

IV. Thus Montgomery posits that the county breached its duty "when on or about January 18, 1977, said cash bond was negligently released to someone other than the Plaintiff." Legally, she could have sued then. She places her reliance on the contention that her cause of action did not "accrue" until her later Discovery. She thus squarely presents the question of whether the Chrischilles discovery rule applies under section 613A.5.

Chrischilles itself was a private party, common-law negligence action to which the...