*1 by change prior shaken off a to the lien of the and cannot be Internal Revenue clings any prop- substance. It to form or Department of the United States in the subject which the can erty money or into proceeds of the insurance from the fire loss * * *(citation).” be traced of the building insured. wherein, is still another context There I would affirm the trial court. I jurisdiction, under the law of this find proceeds place insurance take the of insured MOORE, J.,C. and UHLENHOPP and exemption The from execution property. HARRIS, JJ., join this dissent. exempt proper survives the destruction of in ty, and continues for a reasonable time proceeds policy. Reyn of an insurance

olds, Haines, et al. v. 83 Iowa 49 N.W. Bess,

I also note that in United States 1054, 2 78 S.Ct. L.Ed.2d 1135 U.S.

(1958), government the federal advanced a surviving argument, lien and the theory Gary Virginia Harry HARRYMAN and Supreme accepted United Court States man, Individually parents and as of Rob position that a tax lien con- government’s Harryman, formerly minor, ert a through tinued the conversion of a life in- Harryman, Individually, Appel Robert policy surance with cash surrender value to lants, taxpayer’s death. The proceeds after court right taxpayer enjoy held that had policy the cash surrender value of the dur- HAYLES, McCarty, Gene E. Gilbert life, ing subjecting it to the his thus federal Riddle, O’Malley Robert F. taxpayer tax lien. After the death of the Iowa, Appellees. and Lee beneficiary argued the property No. 2-58259. right extinguished. Supreme was Supreme portion pro- found that Court of Iowa. Court equal ceeds to the cash surrender value at Sept. 1977. subject taxpayer’s death remained lien, though the federal tax even it was from a contractual to the

converted interest

policy proceeds. (Gerhart)

IV. In this case the insured it, right enjoy property, to sell

had duty it. He had no

or to borrow Bess, it, just taxpayer

insure as the su- insure life. The

pra, duty had no property by purchas- protected

insured to mort-

ing payable insurance loss in the event of its destruction in

gagee mortgage clause

keeping with a standard policy.

appended to hold that the tax liens survived

I would involuntary conversion of Gerhart’s

property building from a and contents and pro-

attached to the identifiable insurance my judgment

ceeds. In the trial court Depart- the tax lien of the

properly found of Iowa was

ment of Revenue of the State

633

Gene E. Hayles, Lee County Engineer, Gil- bert McCarty, Robert Riddle and Robert F. O’Malley, members of the Supervi- Board of sors of Lee County, and Lee

The matter reaches us on plaintiffs’ ap- *3 peal from an sustaining order defendants’ separate motions to petition. dismiss the We affirm in part, part, reverse in and remand for proceedings. further review

Our is limited to the issues by, raised allegations and the in, contained the pleadings. Stearns, Stearns v. (Iowa 1971). We take as true all pleaded well Bailey facts. v. Iowa Processors, Inc., Beef 213 N.W.2d (Iowa 1973). pertinent recite the alleged facts in they important become in

our particular discussion of issues.

Plaintiffs raise the following principal is- sues they which rely on for a reversal of the trial court’s order:

1. Iowa Code 613A.5 is unconstitution- § al on its face as violative process of due and equal protection. 2. Iowa Code 613A.5 is unconstitution- Fehseke, Madison, Fehseke & Fort for applied al as plaintiffs to these aas viola- appellants. tion of the process equal due and protection Hirsch, Wright, Adams, Burling- Link & clauses of the United States Constitution

ton, Anderson, Barry M. County and Lee I, and of Article 6 and 9 of the Iowa Keokuk, Atty., appellees. for Constitution. 3. The trial court in holding erred no MOORE, J., Heard before C. RAWL- cause of action against existed the individu- INGS, LeGRAND, REES and REYNOLD- supervisors al county engineer. and the SON, JJ. reaching specific issues, Before LeGRAND, Justice. general make a few observations which appeal This arises out of an helpful automobile should be later opinion. this Harryman (here- accident in which Robert claims were Robert), minor, after who a called was then 613A, brought Chapter under impos- permanent personal sustained serious and tort es subdivi- injuries. The accident occurred when a sions. Prior to the Chapter enactment of guest truck in which was a passen- 613A, Iowa adhered to a policy govern- ger striking overturned after a washed-out immunity. mental In abrogating that doc- portion of a road in Lee trine, legislature attached certain condi- seeking damages rights Robert started suit tions to the there created. The one $2,000,000 injuries. parents, important for his His appeal appears to this Gary Virginia Harryman, joined Although 613A.5. it has since been action, $100,000 amended, asking separate for their the statute at all times material damages. provided The action named as defendants as follows: damages who claims from statute which is

“Every person generally valid to be un- municipality any application for or on account of constitutional in its par- ticular death, facts. Walker v. wrongful injury loss or within the Johnson Coun- (Iowa ty, 1973) scope of section 613A.2 shall commence authority there cited. months, within three an action therefor shall cause to be person unless said We digress injuries here to describe the governing body presented to Robert suffered in this accident as they are sixty days within after the municipality set out in petition. He was rendered death, injury loss a alleged wrongful or unconscious, spinal severed, cord was time, stating place, and written broken, was, five vertebrae were and he for and the amount of circumstances thereof time, completely paralyzed. He is now a compensation or other relief demanded. quadriplegic only ability limited compensa- state the amount of Failure to move his shoulders and will be confined to a *4 relief demanded shall not tion or other wheelchair for the rest of his life. He was notice; providing, hospitalized invalidate 24, continuously August from 1972, 10, shall furnish full information August claimant until and was rehos- pitalized the nature and extent of the [regarding nine times between that date and August 8, 1974, injuries damages] days within fifteen the date upon which his claim was by municipality. against No first asserted after demand Lee Coun- ty, although against he had filed suit action therefor shall be maintained unless individual given defendants earlier. such notice has been and unless years within two action is commenced Robert seeks to excuse his failure to com- giving The time for after such notice. ply with grounds 613A.5 on the § he was such notice shall include a reasonable incapacitated from filing giving suit or no- time, ninety length days, not to exceed injuries. tice because of his alleges He during person injured which the is inca- up condition continued to the very time his injury giving from such pacitated petition was filed. This forms the back- notice.” ground for his claim the statute is unconsti- tutional sought when it is applied to be brought present The suit was not within by arbitrarily him placing a 90-day given months nor was notice three period limit on the incapacity which will days injury. within 60 of Robert’s excuse give failure to notice under words, complied In other 613A.5 was not 613A.5. We hold there is merit to prevail, plaintiffs In order to with. must claim. compliance required. show was not It is important to precise understand the say Plaintiffs the statute is unconsti- I. ground upon which Robert relies. As al- tutional, applied both on its face and as ready mentioned, we have previously up- They process equal raise due them. held the against general statute constitu- protection arguments. tional presents attacks. Here Robert a new quickly dispose We of the claim the constitutional issue. He insists the statute is on its face statute unconstitutional offends equal protection both the and due relying Perry on what we said in Shearer v. process clauses because it denies to some District, Community 236 School N.W.2d incapacitated (those claimants whose inca- (Iowa 1975) Lunday Vogel 692-693 v. pacity beyond days) extends 90 the same mann, (Iowa 1971), 907 N.W.2d gives consideration it to other incapacitated we held the statute valid. Those where (those claimants whose incapacity is less dispositive cases are of this issue. days). than 90 brings II. This us to the more diffi agree We that this provision can problem presented by cult Robert’s asser not equal protection withstand an chal ap lenge. tion the statute is unconstitutional as requirement While there is no all is, course, plied possible It satisfy him. for must be treated alike in order to objectionable 14th part standards under the equal protection had been omitted and Amendment, the differences in classifica if appears it the statute can still accomplish and bear some rela tion must be reasonable principal legislative purpose, the re- legitimate state interest. tionship to a maining valid is said to be severable Keasling Thompson, v. from the invalid. In such obliga- cases our 1974); Vogel (Iowa Lunday 690-691 tion is to save as much of the statute as mann, at 907. We supra, 213 N.W.2d possible, eliminating only that which is nec- every possible hypothesis considered have essary constitutionally to make it sound. might which this statute be sus Applying principles case, those to this a provision We are unable to save tained. hold 613A.5 is a valid and enforceable injured under which some claimants are statute except for the words “not to exceed incapacity their allowed to recover from days.” Those words are stricken. The give notice of being required before statute with this modification is valid and identically claim while others situated ex enforceable. injuries cept severity as to the of their are person now hold a incapacitated as right. that same statute now denied provided in 613A.5 has days following incapacitated persons two classes of creates incapacity termination of his give badly they the basis of how have solely on statutory notice of injury. Sprung Cf. been hurt. Rasmussen, (Iowa incapacitated If claimants are to be al- 1970) and Bennett v. Ida County, 203 time lowed a “reasonable” extension of *5 228, (Iowa 1972). N.W.2d 234 notice, give incapacitated all claimants must be treated the same. This statute is Our on equal protection decision makes it satisfy this fatally bad because it fails to unnecessary to review the claim the statute requirement. also violates process. due result can obtain- proper We believe a be this, however, Even does not necessarily excising 613A.5 the words by ed from § salvage Robert’s cause of action because no days.” 90 This would elimi- “not to exceed injury given notice of has ever been to Lee section, part the offensive leav- nate substantial, We have said rather ing purpose intact the main of the statute literal, than observance of this statute is giving effect to the clear intention of Sneller, sufficient. See Vermeer v. 190 legislature incapacitated the claimants 389, (Iowa N.W.2d 1971). 392-95 given notify be a reasonable time to the In a involving case another short-notice the injury. defendant of statute, recently filing petition we held by no means ends our This conclusion enough satisfy require- was to the notice inquiry phase into this of the case. We 123.93, shop ment of our dram statute. § consider what effect our decision must also Keller, 588, Harrop v. 253 N.W.2d 592-593 has on the statute as a whole and determine (Iowa 1977). Harrop compared In we the section must fall because a if the entire purpose given of the notice to be under is invalid. given 123.93 with that to be § length at question We discussed this same 613A.5. There we said: § Monroe, 24, v. 236 N.W.2d 35-37 in State purpose requirement “The of the notice 1975). 226 (Iowa Blyth, also State v. important. 123.93 becomes § Some 1975); 250, (Iowa v. 261-262 State N.W.2d light purpose by on that can be shed our 322, Books, (Iowa 325-326 pronouncements interpreting a somewhat State, 575, 1975); 172 586 Frost v. N.W.2d statute, 613A.5, analogous The Code. § (Iowa 1969). requires It a written notice to a munici- cited, pality may brought before a tort suit be cases there Prom these other purpose question legislative the is one of it. for the 613A.5 § we learn appears legislature provide prompt If it the would notice is to a method for intent. time, place have enacted the statute even if communication of the and cir- probably injury general in order to accord rule is legislature cumstances that the may attach its own conditions to an prospective opportuni- defendant exercise of rights granted. Bennett v. County, Ida ty investigate while the facts are 235-236; Sprung N.W.2d at v. Rasmus- Vogelmann, 213 Lunday fresh. sen, 180 N.W.2d at 433. Our conclusion (Iowa 1973); Norland v. N.W.2d principle, does not violate that which (Iowa City, 199 N.W.2d Mason surely cannot be extended to include au- 1972). thority impose unconstitutional condi- “Notwithstanding drafting certain differ- rights tions on the exercise of granted. ences between 613A.5 and 123.93 we § Pipe See American & Construction Co. v. purpose believe the behind each notice Utah, 414 U.S. 94 S.Ct. 38 L.Ed.2d * * * requirement is the same. There . only required are three matters for inclu- Nothing we have said touches on the by sion in the notice 123.93. The notice merits of question the fact concerning Rob- time, place, circum- must indicate incapacity give ert’s notice. As already causing injury. Plaintiff’s stances mentioned, this is matter here on a motion notified defendants of all these dismiss, accept and we allegations his * * * on bringing matters. We hold that score as true. At trial he has the suit was itself sufficient notice under establishing burden of that fact. 123.93.” brings III. This us to the claim of Relying rationale of parents against Robert’s statement, bringing above we now hold suit hold is give barred their failure to 613A.5, sufficient notice under as was notice to the statutory within the suming proves incapacity al period. They incapacitation. were under no leged petition. The fact their son incapacitated was does too, Harrop helpful, is in another area. not giving excuse them from notice of their case, us, In that as in the one now before Baker, own claim. Schnebly Cf. plaintiff required plead incapaci- was (Iowa 1974). 721-23 ty ultimate facts sufficient to relieve *6 Although allege they in their petition duty filing him from the of notice within they that incapacitated, themselves were statutory the time. allegation this is a mere conclusion which is obviously Robert’s, upon based rather than this adopt We statement from Har- own, disability. their This is not a well rop, applicable 253 at N.W.2d pleaded give fact. We it no Bailey effect. concerning the nature of incapacity the Processors, Inc., v. Iowa Beef at N.W.2d pled: which must be 648. We refuse extend the statute so spell degree “The statute does not out the that the parents rely can on Robert’s dis- incapacitation of required for extension. ability postpone obligation their own un- legislature believe the We intended that der the statute. accordingly We affirm the incapacitation claims of be resolved on dismissing trial court’s order the claim of the basis of reasonableness. think We Gary Harryman Virginia and Harryman injured party the section seeks to free the against concerning from himself litigation with IV. We next come to the claim of both reasonably until he is able to counsel with parents against Robert and his the individu attorney. alleged incapaci- Plaintiff al members Supervisors of the Board of and prevent tation sufficient to him a reason- against engineer. county the We have held opportunity able to counsel with his at- the provisions that of 613A.5 have greater torney. incapacitation No is re- application no to suits the individu quired under 123.93.” employees governmental al or officers of a have not overlooked the fact Flynn unit. v. Lucas Memorial that 613A.5 is a statute of creation rather Hospital, (1973); 615-616 than Sneller, a statute of limitation. In such cases Vermeer v. 190 N.W.2d at 392. However, nonfea- alleges acts of both functions. the petition gov- abolition of against the individu- sance and misfeasance ernmental immunity by Chapter 613A ren- contend they Defendants al defendants. ders them longer persuasive. no liability because conduct have no previous It is likewise true distinctions performed them was in dis- charged to governmental between and proprietary statutory duty regard charging a functions and between nonfeasance and highways and roads. the maintenance longer misfeasance are no meaningful. court dismissed those counts of The trial Like principle upon they depend- against the individual petition directed governmental immunity they now ed— — Supervisors of the Board of members lack any application to the liability of either grounds that county engineer they on governmental subdivisions or those individ- upon to state a claim which relief failed through uals whom those necessarily bodies granted. could be The court held that the act. negligence alleged acts of That the rationale for the rule barring performance statutory related to the the defendants their official liability employees duties in of officers and was de- capacities, and that these duties were there- pendent upon governmental the doctrine of general public, to the not to owing only fore immunity is well illustrated in Wittmer v. plaintiffs individually. Lacy City Letts, supra. That case held the individual Moines, 253 Iowa 113 N.W.2d 279 Des trustees of a county hospital, operation (1962); City, of Iowa City Smith of which was proprietary a function of the (1931), overruled in Iowa 239 N.W. county, were liable for their torts. The grounds, on other Hall v. Town of court stated at 80 N.W.2d at 564: Keota, (1956). 248 Iowa 79 N.W.2d 784 “The motion to dismiss as to all defend- urge appeal Defendants an additional ants, county, upon other than the rests ground not relied on the trial court— they being merely the contention that their acts constituted nonfeasance agents county performing only, for which no can attach to function, are entitled to employees. Perkins v. public officers same immunity county. as is the 245 Iowa Palo Alto being There no immunity it necessarily must follow that there is no requires This issue some discussion of our immunity (Emphasis sup- as to them.” and of the prior decisions reason hold plied.) dismissing trial court erred action expressly Several earlier cases held that as to the individual defendants. the non-liability employees of officers and have not had occasion to *7 We consider governmental immunity derived from the passage raised since the of matter employing body. of the See Gibson v. pertinent in 1967. The Chapter 613A cases 1006, County, Sioux 183 Iowa 168 N.W. 80 by support cited defendants in of their ar (1918); County, Snethen v. Harrison gument all antedate the enactment of that (1915); Iowa 152 N.W. 12 Wood v. They were decided when our law chapter. County, Boone 153 Iowa 133 N.W. 377 governmen other immunized counties and (1911). from for torts com tal subdivisions stated, Although expressly not this ra- governmental mitted in the exercise of underlies, too, tionale statements in cases Genkinger v. functions. See Jefferson Moines, Lacy City like v. of Des supra, 118, 93 County, (1958); 250 Iowa N.W.2d 130 holding employees that officers and were Letts, Wittmer 248 Iowa 80 N.W.2d performed not liable for acts in the exercise (1957). cases, These and others like statutory relating of their official or duties them, good authority long were as we governmental functions. In recognized immunity governmental Lacy of discharging governmental subdivisions said: al., County, add, too,

“In v. Harrison et We Snethen that this rule imposes no 81, 87, 12, 13, 172 Iowa 152 N.W. it is undue hardship on those individuals since ‘Upon this proposition, said: immu- they are [the indemnified in most by instances nity agents employees govern- of of governmental their employer mental there is a lack of subdivisions] 613A.8. uniformity in the decisions of the various point We out parenthetically this results but, country; courts of this after a care- very anomaly predicted in the dissent underlying princi- ful examination of the Flynn County Lucas Memorial Hospi- ples govern, which should this court has tal, 203 N.W.2d at 618. It is indeed strange agents perform held that who that Lee County cannot be directly held governmental functions are no more re- liable on the claim of parents Robert’s but sponsible body than the artificial —the may compelled nevertheless be to indemnify corporation they for which acted. We see supervisors county engineer departing no reason for any from of these that same claim. The legislature has now ” (Emphasis supplied.) established rules.’ remedied this by making the provi- 253 Iowa at 113 N.W.2d at 282. sions of applicable 613A.5 officers, Although the case from Snethen agents, and employees as well as to the this statement was taken is listed in Shep- municipality itself. Chapter 1263, 5, Reporter ard’s Northwestern Citations as Laws of (1974). the 65th G.A. having been Dugan overruled Dan Transport County, Co. v. Worth 243 N.W.2d case, In this the Board of Super (Iowa 1976), agree we do not that it visors and county engineer clearly had a any Dugan was. In event did not touch on duty to maintain the county proper roads in the matter contained in the quota- above 309.67,319.1,319.7, condition. Code, §§ tion. duty 1971. This runs to all rightfully those using the roads. Cf. Conrad v. Board

We believe the wrong, too, trial court was Supervisors, in its conclusion the A individual defendants duty breach of that duty plaintiffs. owed no can occur The cases either upon negligent theory depends which that commission or omission. are also Wheth based on breached, er the immunity. duty so, was For and if example, in wheth Genkinger v. er it proximate Jefferson was a supra, injuries, cause of the N.W.2d at are court held the matters to be statutory determined at trial. The duty of a county engineer trial deciding maintain court erred in plaintiffs roads had in a safe “owing action, condition was not gener- to the stated a cause of and we reverse public al and not to portion certain individual of the order as to both Robert decedent, or this except as such individual is parents. general public.” In this situa- V. We unnecessary find it to discuss or tion, said, the court “the immunity of the decide several other issues raised since what County extends employee.” to the [Empha- we have already disposes said of the appeal. sis added.] VI. summary In we hold as follows: abrogation hold the govern 1. The ruling dismissing peti- Robert’s immunity mental means principles the same tion is reversed because liability apply employees officers and 613A.5 insofar as it limits right Robert’s *8 municipalities of as to other tort de to file days a late notice is unconstitu-

fendants, except expressly modified or purpose tional. For that he is entitled to 60 limited the provisions of Chapter 613A. days after incapacitation ended. The regard In that 613A.4(3) we take to mean period during incapacitated which he was is simply that there is no for the acts question a fact to be determined at trial. of an employee officer or unless there is negligence. This does not conflict with our 2. While Robert did not file a notice holding here. county, with the filing petition of his REYNOLDSON, (concurring Justice compliance spe- substantial constitutes peti- cially). if the of 613A.5 requirement days after filed within tion was I concur in divisions II and of IV incapacity. termination majority opinion. I would reach a different result on the issues treated in divisions I dismissing petition ruling 3. The III, my for for reasons stated in against Lee dissents parents Robert’s Perry Community Shearer Sch. filed in required by give the notice failure Dist., (Iowa 1975) is affirmed. 613A.5 Vogelmann, Lunday v. dismissing ruling 4. The (Iowa 1973). parents and his both reversed. defendants is individual PART, AFFIRMED IN IN

REVERSED

PART, AND REMANDED. REYNOLD- except Justices concur

All J., specially.

SON, who concurs