Roelefsen v. City of Pella

• Decision Date: 09 October 1903
• Citation: 96 N.W. 738,121 Iowa 153
• Parties: LUCY ROELEFSEN, Appellant, v. THE CITY OF PELLA
• Court: Iowa Supreme Court

96 N.W. 738

121 Iowa 153

LUCY ROELEFSEN, Appellant, v. THE CITY OF PELLA

Supreme Court of Iowa, Des Moines

October 9, 1903

Appeal from Marion District Court.--HON. A. W. WILKINSON. Judge.

ACTION at law to recover damages for personal injuries received by plaintiff while passing over a sidewalk in defendant city. The trial court sustained a demurrer to plaintiff's petition, and she appeals.

Affirmed.

Liston McMillen for appellant.

Crozier & McCormick for appellee.

OPINION

DEEMER, J.

Plaintiff received her injuries February 8, 1901, but she did not commence her action until May 9, 1902. In the month of October, 1901, she served the city with notice of her injury but, as this was more than sixty days after the happening of the accident, her claim is barred under paragraph 1 of section 3447 of the Code, which provides that actions such as this must be brought within three months after the cause thereof accrues unless plaintiff has, within sixty days from the happening of the injury, given the city a written notice thereof, etc. To avoid the bar of the statute, plaintiff pleaded: "That before midnight of the said 8th day of February, 1901, the pain from said injury became so exceedingly severe that she at that time, before the said midnight, became insane, her said insanity taking on the form of distractedness, delirium, flightiness, and unconscious of mind; and the said pain increasing in severity for weeks and months caused her said insanity to continue for several months. That in October, 1901, and within fifty days from the termination of her insanity, pain, medical expense, and expense for nursing, the plaintiff served upon the city of Pella, and the mayor thereof, a written notice specifying the time and place and circumstances of the injuries hereinbefore stated." She claims that by reason of the facts thus pleaded the statute did not begin to run until the alleged disability was removed, and that she had one year, thereafter in which to bring her suit. Section 3453 provides, in substance, that the times limited for actions as provided in chapter 2, title 18, of the Code, shall be extended in favor of minors and insane persons, so that they shall have one year from and after the termination of such disability within which to commence said action. It is doubtful if this provision applies to that part of section 3447 to which we have referred, relating to the giving of notice. Morgan v. City of Des Moines, 60 F. 208 (8 C.C.A. 569). But, if it does, it by no means follows that plaintiff's cause of action is not barred. It is fundamental that, if the statute of limitations once begins to run, nothing--not even death--will save the cause of action, in the absence of express statute to that effect. The statute on which plaintiff relies has reference to a disability existing when the cause of action accrues, and not to a case where the statute began to run before the disability commenced. The language used by the legislature...