Welu v. City of Dubuque

• Decision Date: 21 June 1926
• Docket Number: 37333
• Citation: 209 N.W. 439,202 Iowa 201
• Parties: RAY J. WELU, Appellant, v. CITY OF DUBUQUE, Appellee
• Court: Iowa Supreme Court

209 N.W. 439

202 Iowa 201

RAY J. WELU, Appellant, v. CITY OF DUBUQUE, Appellee

No. 37333

Supreme Court of Iowa, Des Moines

June 21, 1926

Appeal from Dubuque District Court.--D. E. MAGUIRE, Judge.

Action against a city for personal injury received on a defective sidewalk. The defendant pleaded the statute of limitations. In reply, the plaintiff pleaded facts which it was alleged estopped the city from relying on the statute of limitations. On motion of the defendant, the court struck the reply, and plaintiff appeals.

Affirmed.

Beckett & Knoll, for appellant.

M. H Czizek, City Solicitor, for appellee.

VERMILION J. DE GRAFF, C. J., and STEVENS and FAVILLE, JJ., concur.

OPINION

VERMILION, J.

The action is against the defendant city to recover for personal injuries alleged to have been received by plaintiff by falling upon a sidewalk negligently permitted to be in a defective and dangerous condition. The petition was filed December 28, 1923, and the injury was alleged to have occurred on March 21, 1923. No notice stating the time place, and circumstances of the injury was served on the defendant within 60 days from the happening of the injury. In reply to an answer pleading the statute of limitations, the plaintiff alleged that, within three months following the injury, plaintiff's attorney commenced negotiations with the city solicitor and attorney for the city; that the latter said "he was very busy, and when he had a little time, he would look the matter up, and let plaintiff's attorney know what he would do:" that he "told plaintiff's attorney, in substance and in fact, that he would not take advantage of the statute of limitations if suit was not filed within the three-months period." It was further alleged that plaintiff relied on such representation, and failed to bring his action within three months, as he would have done, had he not so relied thereon, and that, by reason thereof, the city was estopped to plead the statute of limitations.

Section 3447, Code Supplement of 1913 (Section 11007, Code of 1924), provides:

"Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared: 1. Those founded on injury to the person on account of defective roads, bridges, streets, or sidewalks, within three months, unless written notice specifying the time, place, and circumstances of the injury shall have been served upon the county or municipal corporation to be charged within sixty days from the happening of the injury."

We said, in Howe v. Sioux County, 180 Iowa 580, 163 N.W. 411, that we were committed to the doctrine that a litigant may estop himself from the right to plead the statute of limitations, citing Holman v. Omaha & C. B. R. & B. Co., 117 Iowa 268, 90 N.W. 833; McKay v. McCarthy, 146 Iowa 546, 123 N.W. 755; and Gamet v. Haas, 165 Iowa 565, 146 N.W. 465.

We held, in Starling v. Incorporated Town of Bedford 94 Iowa 194, 62 N.W. 674, where the statute then in force provided that no action of the character of that here involved should be brought after six months from the time of the injury, unless a written notice specifying the time, place, and circumstances of the injury was served on the defendant within 90 days, that the city council could not waive the right to the service of the three-months written notice. In that case, the petition was filed after the expiration of 6 months. It alleged the giving of an oral notice within 3 months, and acts of the city council relied upon as a waiver of a written notice. We held that a demurrer to the petition was properly sustained; and said that the statute absolutely prohibited the bringing of the suit after 6 months unless the written notice was served within 90...