Benson v. City of Ottumwa

McClain, J. The accident to the plaintiff resulting in the injuries for which he seeks to recover damages occurred September 23, 1906, on a sidewalk in the defendant city. The plaintiff, who was then a minor, instituted his action through his father as next friend within three months, as required by Code, section 3447, paragraph 1, when no written notice specifying the time, place and circumstances of the injury has been served upon the corporation within sixty days from the happening of such injury. In the petition filed by the father as next friend it was alleged that the minor suffered severe injuries to his back, shoulder and side and by the fracture of his left leg, resulting in physical pain and anguish and a crippled condition, and that he had great expense in the employment of [351] a physician, to wit, in the sum of about $100, and damages were asked in the sum of $1,000. More than a year after the filing of the original petition an amendment thereto was filed, in which it was alleged that the said minor had attained his majority by marriage, and substitution of himself as plaintiff in place of his father as next friend was asked. The action was thereafter treated as brought by this plaintiff. In a second amendment there was a prayer for increased damages, in which loss of earnings and the expense of board and nursing during the five months following the injury were included. In a third amendment to the petition it was alleged that for more than one year prior to the action plaintiff was emancipated by his parents, and that he was engaged in working for strangers; his father having no control over his earnings or wages. In a fourth amendment it was alleged that, before the institution of the action, plaintiff’s father had assigned to him all claims that he had or could make against the defendant city on account of injuries received by the plaintiff. On issues raised by answer in denial of the essential allegations of the plaintiff’s petition there was a trial to the jury and a verdict for the plaintiff in the sum of $350. Errors are assigned in the overruling of defendant’s motions to strike portions of the original petition and the several amendments thereto, in the refusal of the court to exclude evidence as to the damages suffered by plaintiff on account of loss of earnings, expense of nursing and employment of physicians, as to the alleged emancipation of the plaintiff, and as to the assignment by the plaintiff’s father to him of the right to recover expenses of physicians and nurses, and in so instructing the jury as to allowing the plaintiff to recover for the elements of damages above specified. [352] 1. Municipal corporations for injuries: amendment: limitations. [351] The sole question presented on this appeal is as to whether the amendments to plaintiff’s petition, filed after [352] the expiration of three months from the time when the injuries were received by plaintiff, presented any other or different cause of action from that up in the original petition, so that they were barred by the statutory provision requiring the action to be brought within three months, where no written notice of the time, place and .circumstances of the injury has been served upon the city within sixty days from the happening of the injury. We are clearly of the opinion that the amendments to the petition, so far as they included allegations of additional damages resulting to the. plaintiff beyond those alleged in his original petition, were properly allowed. It has been uniformly held by this court that additional damages arising out of a tort which is alleged in the petition may be stated by way of amendment. Palmer v. Waterloo, 138 Iowa, 296; Woods v. Lisbon, 138 Iowa, 402; Taylor v. Taylor, 110 Iowa, 207; Gordon v. Chicago, R. I. & P. Ry. Co., 129 Iowa, 747; Little v. Pottawattamie County, 127 Iowa, 376; Van Patten v. Waugh, 122 Iowa, 302. 2. Same The allegation as to emancipation added nothing to the cause of action. It simply constituted an averment of a fact which might be essential to entitle the plaintiff to recover damages which otherwise would have been recoverable only by his father. That such an incidental fact not constituting a part of the wrong, but an element to be shown for the purpose of supporting a recovery by plaintiff, may be added by way of amendment even after the period of the statute of limitations has accrued, was decided in Cahill v. Illinois Central B. B. Co., 137 Iowa, 577. The averment of an assignment to the plaintiff by his father of any right of action which the latter might have on account of the injury to the former was also an averment of an incidental fact not involved in the state [353] ment of the cause of action for the injury received by plaintiff on account of the negligence of defendant. 3. Same: action for injury minor: assignment of cause of action: limitations. It might well be true that a plaintiff alleging a cause of action by reason of a wrong done to himself could not, after the bar of the statute had become complete, allege a cause of action consisting of the wrong # ° # 0 d°ne another which had been assigned to him, for the two torts would in such case be distinct and independent. But, where a mi- _ nor has suffered a tort resulting in loss of earnings to which his father would be entitled ánd the incurring of expense for which his father would be liable, the negligence on which the action is predicated is nevertheless negligence in reference to the minor — that is, a breách of duty to the minor — and the question as to the person em titled to have compensation for such injury is merely incidental. It is argued that as the defendant had no notice of the assignment until the father’s right of recovery had been barred, the defendant might under Code, section 3461, plead the statute of limitations as a defense against the plaintiff as fully as such defense might have been pleaded against the father had the action been brought after the statutory period; but it must be borne in mind that there was originally a cause of action in favor of the plaintiff, and that the assignment by the father simply gave to the plaintiff the right to recover such other damages as the father might have recovered had there been no such assignment, and we think that as the assignment was therefore only of an incidental right, and not of the fundamental cause of action, the plaintiff might plead it as having accrued to him prior to the lapse of the statutory period of limitations, although as an independent right of recovery in favor of the father it may have become barred. Bor these reasons we think the trial court committed no error in allowing the amendments complained of and [354] submitting to the jury the issues raised by such amendments. The judgment is therefore affirmed.