Sachra v. Town of Manilla

• Citation: 95 N.W. 198,120 Iowa 562
• Parties: B. SACHRA, Appellee, v. THE TOWN OF MANILLA, Appellant,
• Decision Date: 21 May 1903
• Court: United States State Supreme Court of Iowa

95 N.W. 198

120 Iowa 562

B. SACHRA, Appellee, v. THE TOWN OF MANILLA, Appellant,

Supreme Court of Iowa, Des Moines

May 21, 1903

Appeal from Crawford District Court.--HON. Z. A. CHURCH, Judge.

ACTION at law to recover damages for personal injuries received by plaintiff while passing along and over a sidewalk in the defendant town. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

Salinger & Korte for appellant.

J. P Conner and C. C. Cole for appellee.

OPINION

DEEMER, J.

The original petition, which was filed within forty-seven days after the accident, alleged that defendant maintained a sidewalk on the north of Sixth street, and that plaintiff while walking thereon, and passing from the Methodist Church to his home thereon, received the injuries of which he complains. In an amendment to the petition, which was filed more than ninety days after plaintiff received his injuries he struck out the word "street," in the petition, and inserted the word "avenue"; making the petition read "Sixth avenue," instead of "Sixth street," as originally stated. Defendant pleaded the bar of the statute to the amendment to the petition, based on the fact that it was not filed until more than ninety days after the alleged injury. Defendant asked the court to instruct that the action was barred. This it refused to do, but, on the contrary, charged that the jury should not consider defendant's plea of the statute of limitations. This raises the first point for our determination, and, if decided adversely to defendant, will settle another proposition relied upon by it. A statement of facts seems necessary to a correct understanding of the point presented for decision: In defendant town there is a street known as "Sixth Street," running north and south, and another known as "Sixth Avenue," running east and west. The Methodist Church is on the north side of this avenue, as also is plaintiff's house, which is three or four blocks westward of the church. The amendment to the petition charged that the accident occurred on Sixth avenue, instead of on Sixth street. If it introduced a new cause of action, then it is barred, unless the original petition be treated as notice to the city, under the provisions of section 3447 of the Code, requiring the service of a written notice on the town, specifying the time, place, and circumstances of the injury, within sixty days from the happening thereof. The subject of amendments is dealt with by our Code (section 3600), which provides, in substance, that the court may permit a party to amend a pleading "by striking out the name of a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading to the facts proved."

The uncontradicted evidence shows that the attorney who drew the petition used the word "street," instead of "avenue," by mistake, and it is apparent that no new cause of action was intended to be introduced by the amendment to the petition. Without evidence, there should be no doubt in view of the record before us, that the amendment was offered to cure a mistake, and not to change the cause of action, or to introduce a new one. The place of accident was not changed by the amendment, and no new grounds of negligence were introduced. The amendment came strictly within the language of the statute. Where a mistake in the name of a party is corrected, it is held that no new cause of action is introduced. Dixon v. Dixon, 19 Iowa 512. And we think that, where made to cure a mistake as to the place of accident, the same rule should obtain. Where an amendment is germane, and does not introduce a new cause of action, it relates back to the date of the original petition, and, for the purpose of the statute of limitations, is regarded as a part thereof. Mather v. Butler County, 16 Iowa 59; Carnegie v. Hulbert, 70 F. 209 (16 C.C.A. 498); Youngerman v. Long, 95 Iowa 185, 63 N.W. 674. That the amendment did not introduce a new cause of action, see Ball v. K. & W. R. R., 71 Iowa 306, 32 N.W. 354; Myers v. Kirt et al., 68 Iowa 124, 26 N.W. 22; McCracken v. R. Co., 91 Iowa 711, 58 N.W. 1085; Kimball v. Bryan, 56 Iowa 632, 10 N.W. 218. Authorities from other states are not wanting on these propositions. See Smith v. Bogenschutz, 14 Ky. L. Rep. 305 (19 S.W. 667); Kansas Co. v. Salmon, 14 Kan. 512; South v. Bees, 82 Ala. 340 (2 So. 752); Stevens v. Hewitt, 30 Vt. 262; Heneshoff v. Miller, 2 Johns. 295; Smith v. Palmer, 60 Mass. 513, 6 Cush. 513; Daley v. Gates, 65 Vt. 591 (27 A. 193); Leeds v. Lockwood, 84 Pa. 70. Box v. C. R. I. & St. P. R. R., 107 Iowa 660, is not in point. In that case a new and distinct cause of action was introduced, and the amendment was not for the purpose of correcting a mistake. It introduced a distinct and separate cause of action. That is not the case here. The amendment we are considering simply changed the name of the street where the injury is said to have occurred, and was filed to correct an evident mistake. While the place where the accident occurred was material to the cause of action, a change of description, to cure an oversight or inadvertence, did not introduce a new cause of action. Moreover it is perfectly manifest that the change was made to correct a clerical mistake. Rau v. Minnesota Val. R. Co., 13 Minn. 442 (Gil. 407) is directly in point. There is no pretense that the defendant was in any way misled. Indeed the petition describes the place of the accident in such a manner that there is no ground for any such contention.

II. The following extract from the record shows the next matter complained of: "Q. You warned your husband to be careful? A. I did. I didn't warn him quite quick enough. Q. You did your best? A. I did. But you know what a man is. Q. Were you not afraid when you started to church that the walk was just as bad as then? Why didn't you warn him then? A. I probably did. It was dark when we started to church. Q. And there was as much reason for warning him then as there was when you came home? A. Yes, sir." This evidence was elicited on cross-examination, and, some time after it was received, plaintiff moved to strike out that part of it which related to what the witness probably did. The motion was sustained, and of this defendant complains. There was no error in the ruling. An ordinary witness should state facts, and not mere inferences or conclusions. Whether or not she warned her husband was a fact, and not an inference from other facts; hence there was no error in striking out her answer. Moreover, the ruling, even if error, was without prejudice, for that the witness stated at another time that she warned her husband as to the condition of the walk before he received his injuries.

Witnesses were permitted to give the names of streets as shown on the town plat. This was surely competent.

These questions and answers show the next rulings complained of: "Q. What do you say about a person being able to injure or strain himself by falling, or starting to fall, and catching hold of a corn-crib and jerking himself--being able to produce this? A. I should think it was possible. Q. What do you say about the injury in fact having been such an injury that it might have resulted from a wrench or strain of the hip or parts? A. I think it could. Q. Suppose that a man was walking along the sidewalk, and suppose that he stepped with his left foot into a hole on the sidewalk, and as he stepped he reached out and caught his right hand upon a corncrib, then reached and held onto his wife, who had hold of him, and sunk down, but not entirely down, on the sidewalk; what do you say that, in such a condition as that, he might have wrenched himself? A. It might have caused the injury he complained of. Q. How might the injury which you have found have been produced? A. It might have been produced by wrenching of the leg." All these questions were objected to as incompetent and not a proper subject of expert testimony. In State v. Rainsbarger, 74 Iowa 196, 37 N.W. 153, counsel, after framing a...