Post v. Davis Cnty.

• Citation: 194 N.W. 245,196 Iowa 183
• Decision Date: 22 June 1923
• Docket Number: No. 34819.,34819.
• Parties: POST v. DAVIS COUNTY.
• Court: Iowa Supreme Court

196 Iowa 183

194 N.W. 245

POST

v.DAVIS COUNTY.

No. 34819.

Supreme Court of Iowa.

June 22, 1923.

Appeal from District Court, Jefferson County; C. W. Vermilion, Judge.

Supplemental opinion on rehearing. Petition overruled.

For former opinion, see 191 N. W. 129.Buell McCash and T. A. Goodson, both of Bloomfield, and J. P. Starr, of Fairfield, for appellant.

Howell, Elgin & Howell, of Centerville, and Thoma & Thoma, of Fairfield, for appellee.

EVANS, J.

On petition for rehearing very strenuous complaint is made by the petitioner upon that feature of our opinion which assumes “absence of legislation creating liability” and which holds it to be the function of the Legislature to declare the “extent of the liability and the limitations thereof,” and that the same “should be definitely promulgated by legislative action.” The point strenuously made with apparent sincerity is that existing sections of the statute do create just such liability, and that we must have overlooked the same. The particular sections brought to our attention are section 1557, Code 1897; section 3447, subdivision 1, Code 1897; section 424, Code Supplement 1913.

[1] The first of these, section 1557, Code 1897, provides the duties of a road supervisor with reference to obstructing bridges and notifying the board of supervisors. Its concluding sentence is:

“Any person who shall remove such obstruction shall be liable for all damages occurring to any person resulting therefrom, but nothing herein contained shall be construed to relieve the county from liability for the defects of said bridge.”

We italicize that part thereof which is relied on. This is a formal saving clause, which has its equivalent in many statutes. Its function is purely precautionary and negative. It purports to add nothing to the law and to take nothing away therefrom. It did not purport to deal with the question of county liability. It was a mere negation on that subject. It only purported to recognize existing law on the subject. Under existing law at the time of its enactment, counties were liable for defects in county bridges. Such liability, however, was not created by the cited statute nor by any previous statute. The existing law was judgemade and declared a common-law liability, which was predicated upon the powers and duties conferred exclusively upon the board of supervisors in the building and maintenance of county bridges. We now hold that the reason for the former holding has disappeared and there is no longer a common-law liability. This does not prevent the creation of a statutory liability. Needless to say that the cited section does not purport to create such statutory liability.

[2] II. Section 3447 comprises the statute of limitations. Under existing law, when it was enacted, counties were liable for defects in county bridges. The statute of limitations was made applicable to causes of action against the county for personal injuries in precisely the same manner as to other municipalities for defective streets and sidewalks. Indeed, it was made applicable even to injuries suffered on account of “defective roads,” as well as defective bridges, even though there was no liability upon the county for a defective road, either by statute...