Armstrong v. City of Des Moines

Supreme Court of Iowa

Armstrong v. City of Des Moines

6 N.W.2d 287, 232 Iowa 711

CourtSupreme Court of Iowa

DecidedNovember 17, 1942

DocketNo. 46060.

StatusPublished

Cited by10 cases

This text of 6 N.W.2d 287 (Armstrong v. City of Des Moines) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Armstrong v. City of Des Moines, 6 N.W.2d 287, 232 Iowa 711 (iowa 1942).

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Opinion

Mitchell, J.

Plaintiff, Louise Armstrong, commenced this action against the City of Des Moines, Iowa, and Board of Waterworks Trustees of the City of Des Moines, Iowa. She alleged that the City of Des Moines, Iowa, was acting as a municipal corporation; that there was a concrete sidewalk located in front of or to the north of the property locally known as 503 East Walnut Street; that the Board of Waterworks Trustees of the City of Des Moines, Iowa, was a corporation engaged in the sale and distribution of water and in its business constantly used manholes in which were located water pipes and water meters; that on the 25th day of May 1940, while plaintiff was walking with her daughter along the concrete sidewalk in front of 503 East Walnut Street, she stepped on a manhole cover; that it tipped up in a perpendicular position and she fell into the said manhole, resulting in personal injuries, for which she prayed judgment in the sum of $15,000. She alleged that the defendants were guilty of negligence in that the cast-iron lugs or locks on the underside of the said manhole cover had been broken *713 off and destroyed and as a result thereof the manhole cover was loose and uneven, and when stepped upon it would tip up in more or less of a perpendicular position, and that the said manhole cover had been maintained in an unsafe and dangerous condition for more than a year prior to May 25, 1940.

Separate answer was filed by the Board of Waterworks Trustees of the City of Des Moines in which it denied generally and specifically each and every allegation contained in the plaintiff’s petition. The City of Des Moines filed a separate answer in which it denied each and every allegation contained in said petition except that it admitted it is a municipal corporation organized under the laws of the state of Iowa. Later, an amendment was filed to the petition, in which damages were sought also against Carl Pears, who was at that time the owner of the property locally known as 503 Eas£ Walnut Street. He also filed answer in which he denied each and every allegation of plaintiff’s petition except that he admitted the City of Des Moines and the Board of Waterworks Trustees were corporations. Later, the plaintiff amended her petition, alleging that the City of Des Moines was negligent in failing to take care that the public sidewalk at the location of the manhole did not become in a defective and dangerous condition.

During the trial of the case the plaintiff dismissed without prejudice her cause of action against the defendants Carl Pears and the Board of Waterworks Trustees. Evidence was offered and the City of Des Moines, at the close of plaintiff’s evidence, made a motion for directed verdict, which was overruled, and at the close of all the evidence the motion was renewed and again overruled. A verdict in the amount of $1,900 was rendered against the City of Des Moines. The City of Des Moines has appealed.

It is first argued that the lower court erred in refusing to grant the appellant a new trial upon its motion and its exceptions to instructions because" the appellee failed to state or •allege in her petition that a notice of claim was served upon the City of Des Moines within the time provided by law, and failed to make proof of service of said notice of the time, place, and circumstances of said injury within 60 days from May 25, *714 1940, said suit not being commenced until the 18th day of February 1941, and that the petition does not state facts sufficient to state a cause of action, and is defective in the following respects:

“a. That the plaintiff wholly failed to state or allege in her petition that a notice of claim was served upon the defendant, City of Des Moines, the record herein showing that this action was commenced more than three months after the occurrence of the alleged injuries to plaintiff and it therefore became a condition precedent to plaintiff’s right of recovery to allege the service of a notice of claim within sixty days upon the City of Des Moines after the alleged injury, and further the record is void of any service or attempted service of any notice of claim upon the defendant,within sixty days in order to entitle the plaintiff to start suit after three months and within two years. ’ ’

The complaint against the ruling of the court is based upon the provisions of the statute contained in section 11007, subdivision 1, of the Code of 1939, which provides that notice of the time, place, and circumstances of the injury must be served upon the municipal corporation within 60 days from the happening of the injury, or suit must be commenced within three months. This record shows that at no time did the appellant plead or raise the statute of limitations before the trial court until the motion for a new trial was filed, and it is the contention of the appellee, and we think rightly so, that in failing to raise said bar of the statute of limitations as an issue in the case, appellant has waived the said defense. In the case of Belken v. City of Iowa Falls, 122 Iowa 430, 431, 98 N. W. 296, 297, this court said:

“ * * * we may add that appellant is not in position, in any event, to object at this time to the sufficiency of the notice, or the fact of the service thereof. No such question was made in the trial court, and it cannot be raised here for the first time. The answer was a general denial. If defendant expected to rely upon the limitation statute, it should have pleaded the same. Not having done so, it must be held to have waived the benefit thereof. ’ ’ 1

*715 In the ease of Borghart v. City of Cedar Rapids, 126 Iowa 313, 317, 101 N. W. 1120, 1121, 68 L. R. A. 306, this court said:

“Appellant insists that inasmuch as the claim is for un-liquidated damages, and was not filed with the clerk of defendant city within 30 days after the conveyance of the square, the cause of action is barred by the statute' of limitations. See Kenyon v. City of Cedar Rapids, 124 Iowa, 195. This defense is an affirmative one, and, to be available, the facts constituting it must be pleaded. Harlin v. Stevenson, 30 Iowa, 371; Tredway v. McDonald, 51 Iowa, 663. By omitting to do so, the defense is deemed to have been waived. Robinson v. Allen, 37 Iowa, 27; Brush v. Peterson, 54 Iowa, 243; Welch v. McGrath, 59 Iowa, 519. See Reed v. City of Muscatine, 104 Iowa, 183. One of the grounds of the motion to direct verdict was the bar of the statute, and appellant argues that, as a motion is enumerated as a pleading in section 3557 of the Code, the bar of the statute of limitations was raised by the pleadings. That section has reference to written motions filed in making up the issues in the case. The bar of the statute must be made an issue, and it seems hardly necessary to say that a motion to direct a verdict is necessarily based on the issues as previously joined and the evidence adduced bearing thereon. By failing to make the statute of limitations an issue in the case, that defense was waived. ’ ’

The plea of the statute of limitations is an affirmative defense and the burden of proof is upon the pleader. The City of Des Moines filed as its answer a general denial; it did not plead the statute of limitations. The city cannot now complain that its plea of the statute of limitations was ignored by the court when the city ignored said plea throughout the trial and until the filing of its motion for a new trial. There is no merit in its contention.

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