Rush v. Sioux City

• Decision Date: 17 March 1976
• Docket Number: No. 56366,56366
• Citation: 240 N.W.2d 431
• Parties: Jack L. RUSH, Appellant, v. SIOUX CITY, Iowa, a Municipal Corporation, et al., Robert T. Bean and Bonnie J. Warren, Appellees.
• Court: Iowa Supreme Court

Page 431

240 N.W.2d 431

Jack L. RUSH, Appellant, v. SIOUX CITY, Iowa, a Municipal Corporation, et al., Robert T. Bean and Bonnie J. Warren, Appellees.

No. 56366.

Supreme Court of Iowa.

March 17, 1976.

Wilson, Rhinehart & Bikakis, Sioux City, for appellant.

Gleysteen, Harper, Kunze, Eidsmoe & Heidman, Sioux City, for appellees, City of Sioux City, Iowa, and Robert T. Bean.

Considered en banc.

MASON, Justice.

A motor vehicle collision in which a Volkswagen Fastback struck a panel bread truck from the rear gave rise to a lawsuit instituted by Jack L. Rush, driver of the penal truck.

The collision occurred at twelve o'clock noon December 26, 1968, in Sioux City as plaintiff Jack L. Rush, an employee of the Metz Baking Company, was driving a company bread truck south on U.S. Highway 75 (Plymouth Street) followed by defendant Mrs. Bonnie J. Warren in her Volkswagen. Both vehicles were traveling at approximately 20 miles per hour on the icy, snowpacked street.

Meanwhile, defendant Robert T. Bean, a Sioux City police officer, was driving a city owned squad car east on Sixth Street, approaching the intersection with highway 75. After either slowing down or stopping at the stop sign, Bean drove into the intersection and onto highway 75 turning north in front of plaintiff who was about to enter the intersection. In order to avoid a collision with the squad car, plaintiff stopped quickly. Within seconds, Mrs. Warren, unable to bring the Volkswagen to a stop, collided with the back end of the bread truck. There was no impact between the vehicle operated by plaintiff and the police car.

Rush sought recovery from the City of Sioux City, a municipal corporation, Robert T. Bean, a Sioux City police officer, and Bonnie J. Warren, owner and operator of the Volkswagen, for personal injuries.

Plaintiff's petition filed December 18, 1970, was in five divisions. In division 1 Rush's claim for relief was based on the theory the concurrent negligence of all three defendants in one or more of the particulars specified was a proximate cause of his injuries; division 2 is bottomed upon alleged negligence of the City and its employee, Robert Bean; division 3 rests upon the alleged negligence of Bean alone; division 4 seeks recovery on the theory the negligence of Warren alone was the proximate cause of the collision; and division 5 is predicated on the theory the alleged negligence of Bean and Warren concurred in proximately causing plaintiff's damages.

Sioux City filed a motion to dismiss plaintiff's petition as to the City alleging Rush did not bring his action within three months following the accident and did not affirmatively allege that a written notice of the accident had been given to the City within 60 days following the accident as required by chapter 613A of the Code as then in force. Plaintiff resisted the motion. Following hearing the court sustained the City's motion.

Before trial Rush and Warren and their respective spouses entered into an agreement for payment of $10,000 (the amount of insurance coverage available from Warren) in return for a release of Rush's claim against Warren.

The case came on for trial to a jury. Before the introduction of any evidence the court on its own motion dismissed plaintiff's petition 'as far as it concerns the defendant Bonnie J. Warren.' The matter proceeded on plaintiff's claim against Bean which resulted in a verdict for the police officer.

Plaintiff appeals from the order dismissing his petition against the municipal corporation and as against Warren and from judgment following denial of plaintiff's motion for new trial.

Officer Bean testified at the trial that on December 26 he was working the 7 a.m. to & p.m. shift as an accident investigator and as a backup for the regular east or west side traffic cars on all personal injury accidents. When at Fifth and Iowa Streets he was dispatched by police radio to a personal injury accident at Thirty-second and highway 75 north. The officer further testified as he proceeded to Sixth Street he engaged the siren and rotating red lights, both of which were in operation as the squad car turned north at the intersection of highway 75. There was some dispute at trial as to the extent which Officer Bean used the emergency equipment on the squad car after being dispatched to the scene of the accident.

Robert Vander Weil, another Sioux City police officer, was also dispatched to the accident on highway 75 north. He followed Officer Bean down Sixth Street and onto highway 75. He corroborated Bean's testimony as to the operation of the lights and siren. A construction worker who witnessed the collision testified substantially to the same extent except for the fact the siren stopped as the squad car approached the intersection.

In opposition to this is the plaintiff's testimony that while he did observe the squad car, he did not hear anything. He was not sure whether the emergency flashing lights were turned on. The reliability of this testimony was put into question because of the fact plaintiff, shortly after the accident, had prepared a 'questionnaire' in his own writing for his chiropractor, Irving Molstad. This questionnaire contained information both squad cars were operating their sirens and that defendant Bean's car had its lights in operation.

In connection with the settlement agreement between Rush and Warren plaintiff entered and 'renewed' a motion in limine which sought to exclude any evidence concerning the agreement. The first motion was made prior to opening statements and the taking of testimony and was overruled with the reservation by the trial court of the right to reconsider the ruling.

During trial, but in the absence of the jury, plaintiff renewed his motion in limine. Again, the trial court overruled it subject to reconsideration. At this point it appears plaintiff wished that if such evidence of the agreement were later admitted, any error be predicated upon (or preserved by) the trial court's Overruling of the motion itself rather than by an in-court objection. Plaintiff felt this would avoid prejudice.

The trial court, on the other hand, reminded plaintiff the general rule is, when a motion in limine is overruled, 'the party is on notice that he should make proper objections at the proper time. You have made your record, and the Court doesn't want to prohibit you from doing that, But it's the decision of the plaintiff as to the matter of objections.' (Emphasis supplied).

When the defense cross-examined Mrs. Warren on the settlement agreement, plaintiff lodged no objection. The appendix indicates the agreement may also have been referred to in opening argument.

We have formulated in the following fashion what we believe plaintiff maintains are the issues presented for review by his appeal:

1. A. Did the fact that a Sioux City police officer investigated the collision give the City, as the officer's principal, notice of the accident, thus substantially complying with section 613A.5, The Code, 1971?

B. Does section 613A.7, when read in conjunction with section 613A.4(4), serve to effect a waiver of the notice requirement in situations where a city possesses liability insurance?

2. A. Should evidence of the settlement agreement between plaintiff and Mrs. Warren have been admitted into evidence? Was error preserved?

B. Did the trial court's Sua sponte dismissal of the petition against Mrs. Warren, due to the settlement agreement, constitute reversible error?

3. A. Was a fact question generated as to whether Officer Bean was on an authorized emergency mission?

B. Assuming Officer Bean was on an authorized emergency mission, was he required to have in operation the squad car's 'lights and/or siren' in order to be exempt from ordinary traffic regulations?

C. Did trial court commit error by not submitting plaintiff's requested instructions 4, 5 and 7 on the officer's duty of care under the provisions of a city ordinance?

D. Should the trial court have submitted an instruction dealing with the question whether Officer Bean slowed down and proceeded cautiously through the stop sign, not acting with reckless disregard for the safety of others?

4. Was the evidence of plaintiff's contributory negligence sufficient to justify the submission of that issue to the jury?

I. As mentioned, the City's motion to dismiss based on noncompliance with the notice provisions of section 613A.5, The Code, 1971 (then Acts of the Sixty-second General Assembly, chapter 405, section 5) was granted. Plaintiff asserts this constituted error for two reasons. First, since a City police officer investigated the accident, the City as the officer's principal had notice of it. This, it is argued, constituted 'substantial compliance' with section 613A.5. Second, in the words of plaintiff, '* * * Section 613A.2 imposes liability upon a municipality for its torts, and Section 613A.5 is (a) valid limitation of acts bar of such liability unless notice is given within sixty days or suit is commenced within ninety days. However, 613A.7 then provides for a waiver of the limitation of actions bar contained in 613A.5 by the procurement of insurance. In other words, the right to sue is given in 613A.2, limited in 613A.5, but such limitation is removed by application of 613A.7 and 613A.4(4) which read together have the effect of abolishing the limitation of actions section in situations where the municipality has procured insurance.'

The foregoing grounds were raised in plaintiff's resistance to motion to dismiss. In his motion for a new trial plaintiff stated: 'The Court erred in dismissing the Petition of the plaintiff against the City of Sioux City, Iowa, a Municipal Corporation.' In denying this motion, the trial court concluded, '* * * the ground is moot, because no appeal was taken from the ruling dismissing the petition as to defendant City of Sioux City, Iowa, and therefore this ruling is final and must be considered correct, because...