Parkhill v. Bekin's Van & Storage Co.
Decision Date | 16 March 1915 |
Docket Number | 30155 |
Citation | 151 N.W. 506,169 Iowa 455 |
Parties | HUGH PARKHILL, Appellee, v. BEKIN'S VAN & STORAGE COMPANY, Appellant |
Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--HON. DAVID MOULD, Judge.
ACTION at law to recover damages for personal injuries received by plaintiff while in defendant's employ, due to the fact that defendant furnished plaintiff a defective truck with which to work. Defendant denied the negligence charged pleaded assumption of risk and contributory negligence, and also the statute of limitations. Upon the issues joined, the case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.
Affirmed.
Sargent Strong & Struble, for appellant.
Geo. W Kephart, P. H. Konzen, and F. E. Gill, for appellee.
The first question which we shall determine arises upon defendant's answer pleading the statute of limitations. An original notice was placed in the hands of one Montgomery, who served the same upon the defendant on September 24, 1913. In this notice, it was stated that a petition would be on file on or before December 26th of the same year, claiming damages by reason of an injury received by plaintiff during the month of June, 1912, due to the defendant's negligence. The notice also stated: "For further particulars, see petition which will be placed on file. . . ." The defendant was notified to appear at the next January term of court, commencing on the 5th day of January of the year 1914. A petition was filed on December 26, 1913, and therein plaintiff charged that his injuries were received on December 15, 1911. On January 5, 1914, defendant appeared; and on the 12th day of the same year, it filed an answer. On the 18th day of February of the same year, it filed an amendment to its answer, pleading the statute of limitations. Such actions as this are barred by statute when not commenced within two years from the time the cause thereof accrued. Code Sec. 3447, Par. 3. The petition, which must govern, states that the cause of action accrued on December 15, 1911, so that it must have been commenced on or before December 15th of the year 1913. The petition was not filed, and defendant did not appear until after the statute had run; but the original notice was served on November 24th of that year, and this was in time. Ordinarily, in this state, an action is commenced by the service of an original notice. Code Sec. 3514.
Defendant insists, however, that the notice served in this case was of another cause of action, to wit, one occurring in June of the year, 1912, and that this was not the commencement of the present action. The proposition is plausible, but not tenable. True, the original notice stated that the injury occurred in June of the year 1912, but this was not a material part of the notice; and in the instant case, the defendant's attention was not only called to the petition itself, which was to be forthcoming, but it responded thereto, and entered a voluntary appearance to the action. If the notice was not of this action, then it has no place in the record; and as the date of the accident need not be stated in the notice, or if stated, need not be proved, a mistake therein which does not in any way mislead is to be disregarded. Plaintiff has at no time claimed that he had two causes of action; and the only one he presented was the one stated in his petition. Manifestly, he was mistaken in fixing the date in his original notice, but this was corrected in the petition, if it needed correction, and no possible prejudice resulted to the defendant. There is no merit in defendant's plea, and the court properly disregarded it.
I. Plaintiff was in defendant's employ as a common laborer, whose duties were to check goods as they came into and went out of defendant's storage house, to assist in putting them away for storage and to take them from one floor to another by the use of an elevator. He received his orders from S. P. Bekin, defendant's manager, and was supplied with trucks for the purpose of moving goods. He had been at work some four years before the accident occurred, but testified that never before had he moved pianos until the time the accident occurred. He was directed, on the day in question, to move a player piano, which was encased in a box, from the floor where it then was to an upper one, and he asked the manager what truck to use, and was directed by him to get the long one, for the reason that it could be more easily balanced on that one. We here quote from the record as follows:
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