143 Iowa 349 | Iowa | 1909
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
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.
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
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
The judgment is therefore affirmed.