Sprung v. Rasmussen

• Decision Date: 13 October 1970
• Docket Number: No. 54254,54254
• Citation: 180 N.W.2d 430
• Parties: Daniel SPRUNG, a Minor, by Robert Sprung, his Father and Next Friend, and Robert Sprung, individually, Appellees, v. Robert RASMUSSEN and the Riceville Community School District, Appellants.
• Court: Iowa Supreme Court

Page 430

180 N.W.2d 430

Daniel SPRUNG, a Minor, by Robert Sprung, his Father and Next Friend, and Robert Sprung, individually, Appellees, v. Robert RASMUSSEN and the Riceville Community School District, Appellants.

No. 54254.

Supreme Court of Iowa.

Oct. 13, 1970.

Larson & Carr, Charles City, for appellants.

Dunkelberg, McKinley & Folkers, Osage, for appellees.

REES, Justice.

This is an interlocutory appeal from an order of the trial court overruling the motion of the defendants to dismiss petition of plaintiffs in which motion defendants asserted plaintiffs had failed to comply with the provisions of Chapter 405, section 5, Acts of the Sixty-Second General Assembly (Section 613A.5, Iowa Code Annotated). We affirm the trial court.

On February 14, 1968, plaintiff Daniel Sprung, a minor, was a senior student in the Riceville Community School District, and one of a class of students engaged in a physical education training period under the instruction of defendant Rasmussen. Rasmussen had directed the plaintiff Daniel Sprung and the other students in the class to perform a tumbling exercise known as a 'double roll', and while in the process of performing, or attempting to perform, the exercise, plaintiff allegedly sustained injuries from which he was incapacitated until May 11, 1968, or 87 days after the happening of the accident. On June 29, 1968, 136 days after the happening of the alleged accident, notice of the fact plaintiff Daniel Sprung had sustained injury was directed to the president of the board of education of the Riceville Community School District, and the secretary of the school district, by letters over the signature of plaintiffs' attorneys, and subsequently, on October 15, 1969, petition of the plaintiff brought in his behalf by Robert Sprung, his father and next friend, was filed in the office of the clerk of the district court of Mitchell county. The petition was in four divisions: (I) the claimed cause of action against defendant school district on behalf of the minor; (II) the claim of the minor against the defendant Robert Rasmussen; (III) the claim against defendant school district by plaintiff Robert Sprung, individually, for the loss of his son's services; and (IV) the claimed cause of action of the father for loss of services of his son against the defendant Rasmussen.

Answer was filed by the defendant school district which incorporated affirmative allegations that notice had not been given as is required by section 613A.5, Iowa Code Annotated, and was in effect a motion to dismiss the petition of the plaintiffs for failure to comply with the notice requirements of the cited section. Hearing was had in accordance with the provisions of rule 105, Rules of Civil Procedure, at which hearing the court separately heard points of law raised in the answer of the defendants and dismissed the divisions of plaintiffs' petition in which the plaintiff Robert Sprung, individually, sought to recover damages, on the grounds that the required notice had not been given. The court overruled the motions to dismiss of the defendants insofar as they related to the claim of the minor plaintiff, Daniel Sprung, and it is from this ruling the defendants have taken permissive interlocutory appeal.

Section 613A.5, Iowa Code Annotated, which is also referred to by the parties as section 5 of Chapter 405, Acts of the Sixty-Second General Assembly, provides:

'Every person who claims damages from any municipality for or on account of any wrongful death, loss or injury within the scope of section 613A.2 shall commence an action therefor within three (3) months, unless said person shall cause to be presented to the governing body of the municipality within sixty (60) days after the alleged wrongful death, loss or injury a written notice stating the time, place, and circumstances thereof and the amount of compensation or other relief demanded. Failure to state the amount of compensation or other relief demanded shall not invalidate the notice; providing, the claimant shall furnish full information regarding the nature and extent of the injuries and damages within fifteen (15) days after demand by the municipality. No action therefor shall be maintained unless such notice has been given and unless the action is commenced within two (2) years after such notice. The time for giving such notice shall include a reasonable length of time, not to exceed ninety (90) days, during which the person injured is incapacitated by his injury from giving such notice.'

Defendants advance as errors relied upon for reversal: (1) the court erred in failing to find that the duty in serving the notice required by section 613A.5 rested with Robert Sprung, father, natural guardian and next friend of the minor, Daniel Sprung; (2) the court erred in inferentially adding words to the statute to extend the period of statute of limitations; (3) the court erred in failing to recognize that with no notice served before three months had elapsed that the statute of limitations had expired and that neither plaintiff thereafter had any right to commence an action; (4) that the ruling of the court makes of the last sentence of section 613A.5 a revival act; that is, that notice served 136 days after the accident revived a cause of action which had been lost due to the statute of limitations; and (5) the court erred in failing to find that 49 days was an unreasonable time to wait to file notice after the minor was free from incapacity and that the notice was not served within a reasonable time after the minor recovered.

I. The defendants do not appear to question the fact Daniel Sprung was incapacitated by his alleged injury from February 14, 1968 until May 11, 1968, at least insofar as this appeal is concerned, and it seems to be conceded by the parties that the time between said dates was 87 days. There seems to be no disagreement that the notice above referred to was served 49 days after the termination of the minor's claimed incapacity. We find ourselves unable to perceive merit in defendants' first assigned error in which they assert the requirement for notice rested with the father and next friend of the minor and not with the minor himself. The statute expressly imposes upon the injured party the responsibility for the giving of the required notice. This court has said a next friend is not a party in interest and is merely one who advances the minor's cause in the absence of a guardian. In Re Beghtel's Estate, 236 Iowa 953, 958, 20 N.W.2d 421, 423, 161 A.L.R. 1384; Wheatley v. Heideman, 251 Iowa 695, 712, 102 N.W.2d 343, 354. We hold, therefore, no obligation rested upon Robert Sprung in his capacity as next friend of his minor son to comply with the notice...