Montgomery v. Polk County

9H that, exercising judi- although We hold function, illegally in its trial court acted

cial ap- July taxing Richard’s court

order of attorney parents. fees his

pointed of certiorari is sustained.

The writ

WRIT SUSTAINED. except McCORMICK

All Justices concur LeGRAND, JJ., specially. concur who (concurring spe-

McCORMICK, Justice

cially). I write join opinion, I the court’s

While necessary

separately to add that I believe in a child

legal indigent for an child services are neces- proceeding

in need of assistance obligated are under parents

saries for which Code, 597.14, and for which

section by the

they may be held liable in an action In addition to

county that statute. of the court’s

the cases cited in footnote 1 cited in 59

opinion, see discussion and cases 55 at 145

Am.Jur.2d Parent and Child §

(1971), Parent and Child 16§ and 67 C.J.S.

at 703

LeGRAND, J., joins special in this con-

currence. MONTGOMERY, Appellant,

May COUNTY, Iowa, Appellee.

POLK

No. 62298.

Supreme Court Iowa.

May & of Bertroche Cunningham

Michael J. Moines, J. Bothe Robert Hagen, Des Moy- Crawford, Kirchner & Garvey, Nye, Neb., Omaha, lan, appellant. Atty., and Johnston, County Polk Dan L. County Lenihan, Asst. Polk Thomas P. appellee. Atty., for appeal, fied the case for R.App.P. Iowa Montgomery appealed. and (cid:127) UHLENHOPP, Justice. Montgomery presented way II. The appeal The decisive issue in this is wheth- important analysis the the her claim to of applies er the rule to cases under proceed case. against She did not the clerk Municipal Act, our chapter Tort Claims for failure to over pay on demand. Instead 613A, The Code 1977. See Chrisehilles proceeded Municipal she the Tort Griswold, 260 Iowa 150 N.W.2d 94 against body for the public Claims Act the money to negligence paying clerk’s the 18,1977. wrong person January the on Although County, I. defendant Polk are appropriate decisions therefore those Iowa, presses other evidence our to atten- dealing Municipal with the Tort Claims Act. tion, following may the be taken as estab- purposes appeal. lished for the No- of On Municipal 613A.1(1) of Under section our vember officers arrested Linda Act, Tort a “municipality” Claims includes charge possession Brewer on a of of a con- county. provides: of the Section 613A.5 act deliver, trolled substance with intent to and Every person damages who claims from cash bail May was set Plaintiff $2000. officer, any municipality employee or Omaha, Montgomery, Brewer’s friend from agent municipality or of a for or Nebraska, bail, posted receipt the a took death, any wrongful account of or loss police, from the and re- obtained Brewer’s the injury scope within of section 613A.2 lease. day The next personnel the clerk liability [imposing or section tort 613A.8 receipt a issued to for Brewer or to under common defend] law shall commence an therefor $2000. months, six person within unless said point At some the district court sustained shall presented govern- cause to be to suppress motion to evidence the crimi- ing body sixty municipality within against nal case Brewer. days wrongful alleged after 16, 1976, writing, On December Brewer loss stating or notice written assigned the Attorney cash bail to Robert time, place, thereof and circumstances Wright. January 17, 1977, A. On as- compensation and the amount of or other signment was filed with the clerk. relief demanded. Failure to state time January On on the recommenda- place or circumstances the amount tion prosecutor, compensation district court or other relief demanded notice; charge against providing, dismissed the criminal Brew- shall not invalidate the er. day On the informa- paid same the clerk cash claimant shall furnish full days bail within fifteen after demand Wright. Mr. $2000 to the municipality. No action therefor According testimony, to her Montgomery shall has be maintained unless such notice came May to Des Moines in 1977 and for and unless the action is com- the first charge time learned that two no- menced within after such against Brewer had been dismissed giving tice. The time for such notice cash paid bail Wright. had been to Mr. She time, length shall include a reasonable conferred the county attorney, who ninety days, during not to exceed suggested that she private consult counsel. person injured incapacitated by his September 29, 1977, On Montgomery giving such notice. commenced the instant action to recover Montgomery within six did not sue $2000 and interest County from Polk paid “negligently” months after the clerk City Moines, of Des Iowa. She later sixty Wright, give nor did she notice within dismissed the case City. as days so to paid Wright after the clerk as After trial county the court held to years. extend the time sue two She ground on the Montgomery sued too incapacitated by injury was so as late, citing section sixty days give 613A.5. The court certi- extend the notice. Griswold, Montgomery 453, 150 III. 94, 99 therefore faces the 260 Iowa limitation in section 613A.5. We need not Plaintiff did not become aware of speculate about the various avenues she negligent performance Defendant’s taken, might endeavoring to avoid consequent injury to her interest un that section. She selected her own route til May on or about 1977. This is the proceeds and set it out in her brief. She first time Plaintiff was aware that the (1) county negligent follows: was in money deposited she had with the De paying money wrong person, (2) paid fendant had been to someone else. duty this breach of the of care occurred on This is the first time Plaintiff aware was 18, 1977, January when county paid Mr. that injury she had received an to her Wright, (3) Montgomery did not discover interest. This is the first time she could the breach May (4) until her cause pursued an action to a successful of action county dii not accrue result. until the discovery, citing Chrischilles v. is true that injury Plaintiff’s is Griswold, 260 Iowa 150 N.W.2d 94 negligent traceable to a act of Defendant in She states her brief: However, on or January about When the paid Defendant released and Plaintiff any injury was unaware of over the money Plaintiff’s per- to another 1, 1977, her May interest until and it was son, notwithstanding the fact not until this date that her cause of ac Defendant had receipt Plaintiff a injured party accrued. “If an acknowledging receiving money wholly inju unaware of the nature of his Plaintiff, the Defendant fell short in its ry it, and the cause of is difficult to see duty of care to Plaintiff and she was how may charged he be with a lack of damaged. added.) (Emphasis diligence or sleeping rights.” on his out her reliance on spells then Chris She Griswold, 453, 150 v. 260 Iowa Chrischilles language: in this chilles 94, 100(1967). added.) (Emphasis After she became aware that the De- She continues in her brief: fendant erroneously paid money had As in Chrischilles v. summarized Gris over person, to another the Plaintiff was wold, id. the recent trend has been to then faced with an election: whether to ward “the rule.” This rule sim affirm the contract which Plaintiff and ply stated is that a statute does not com Defendant deposit- entered into when she discovery, mence to run until the date of ed money, the bail thereby waiving the when, by or the date the exercise of rea tort, proceed in an action ex contrac- care, sonable Plaintiff should have discov tu; or, abandon the proceed contract and wrongful question ered the act. “The in an pro- action ex delicto. Electing to not, any given case is what did Plaintiff delicto, ceed ex question becomes: but, injury know of the done him? what when did Plaintiff’s cause ac- of action known, might by he have the use of the crue ? reach, means of information within his gives contract which rise to this vigilance requires which the law

lawsuit was executed on November of him? We the better rule now believe 1976, when posted the Plaintiff the Two to be that a cause of action based on ($2,000.00) Thousand Dollars cash bond negligence does not accrue until Plaintiff receipt and received a acknowledging the has fact discovered that he has suf money from the Defendant. Plaintiff did fered exercise of reasonable not become aware negli of Defendant’s diligence should have discovered it and gence May until on or about persuaded are the rationale of the dis this is the date on which Plaintiff’s cause adopted.” covery doctrine should be general accrued. “The rule is Griswold, id., that a cause of action accrues when the Chrischilles [150 N.W.2d] aggrieved added). party (emphasis Applying has a the dis to institute case, and maintain a suit.” covery Chrischilles rule the facts of this itself, covery as to when a cause of that she suffered an rule Plaintiff discovered injury, that the Defendant had breached action “accrues” or “arises.” 51 Am.Jur.2d (1970); money its her 107-37 of care to her and Limitation of Actions §§ would not be returned to her on or about Limitations Actions 108-98 C.J.S. §§ 1,May 613A.5, however, 1977. This is the date that the provides Section given by Statute of Limitations Code of person damages claims for who run, began thereby Iowa 618A.5 loss, death, “shall com- wrongful filed, making timely Petition Plaintiff’s six mence an action therefor within and not barred held the Trial Court. giv- sixty-day months” unless the notice sixty days en. arguments Montgomery’s These brief alleged wrongful notice also runs “after the paragraphs are in line with four and five of legislature injury.” loss or Did the negligence petition: count of her actions must intend section 613A.5 that receipt 4. That as a result stated, brought within the time therein Defendants, by the cash the bond claims, intend, Montgomery or did as that it duty Defendants owed a of care discovery? time runs from later Plaintiff to see that said cash bond was returned to the Plaintiff once the condi- section duty A. We have the to construe tions of bail were met one Linda to 613A.5in accordance with what we deem Brewer. Assembly be the of the Iowa General intent 5. That Defendants breached that Accordingly enacting in it. we con- duty of care owed to the Plaintiff when sistently stated that a claimant must com- 18, 1977, January on or about said cash part ply with section 613A.5 as of statute negligently bond was released to someone creation; legislature open could other than the Plaintiff. Deal- door to the extent it chose to do so. indemnity, ing with and we contribution county’s brief contains thfe same legislative drew as understanding several conclusions to Montgomery of the claim Burt, 179 Boyle intent in the case of makes—-that the “cause of action did not (Iowa 1970). accrue The fifth plaintiff until N.W.2d ‘discovered’her conclusion, May (Emphasis added.) 1977.” 613A.5 respect with to section notices, intended to legislature was that the Montgomery posits IV. Thus “specified giv- allow time variances for the county breached its “when on or about ing only regard of claim with notices January negli- said cash bond was incapacity injury, not here death due gently released to someone other than the added.) applicable.” (Emphasis Legally, Plaintiff.” she could have sued places then. She her reliance on the con- Dealing with the extension of time for tention that her cause of action did not Sprung v. Rasmus incapacity, we stated in discovery. “accrue” until her later She thus sen, (Iowa 1970): N.W.2d squarely presents question of whether right of ac- Chapter 613A created a new discovery applies the Chrischilles rule was not available at com- tion—one that 613A.5. section by stat- mon law nor available elsewhere therefore, utory while authority, and private party, Chrischilles was a itself interpreting cases other limitation stat- negligence common-law action to which the control here. helpful, they utes are do not general applied. statute of limitations That 613A, Truly chapter particularly running statute starts time when causes of here, interpreting we 614.1, section which are action “accrue.” The Code. § Sec- 613A.5, 613A.5, a statute however, might section be called does not use that creation, of limi- than a statute term. Nor does it rather use a similar term such creates a new liabili- as “arise.’-’ tation. The statute give Such terms limitations enforcing ty provides statutes for methods of elasticity some demonstrated same, consider, fixes the time body cases we will its terms for a exists, recovery may be including court-made law the dis- within which action light interpretation In the of our being of cre- commenced. statute ation, of the action agree the commencement we are unable 613A.5 § within the time the statute fixes is an arbitrarily and plaintiffs that said section indispensable liability condition of infringes upon or cuts off capriciously permitted. time and of the action rights violation of constitutional vested element is an inherent element of the guarantees. Instead, we conclude the created, right so the limitation of right of by chapter 613A provided remedy is likewise a limitation of than, with, is co-extensive and no broader added.) right. (Emphasis In requirement 613A.5. notice § Dealing rais- proper with the manner of words, compliance might other be said ing quoting Boyle, the notice issue and requirement with the notice is a condition County, we stated in Bennett v. Ida an ac- precedent to the maintenance of (Iowa 1972): lapse N.W.2d ‘A of a commit- compensation tion for for torts statutory period operates, to ex- therefore by governmental ted subdivisions. See tinguish right altogether.” (Empha- p. Actions Am.Jur.2d Boyle.) sis Dealing with malpractice, we adverted to notice, sixty-day we Dealing with the Flynn rule and stated Frese, stated in Lattimer v. County Hospital, Lucas Memorial (Iowa 1976): “The statute mandates (Iowa 1973): the clear tenor of our decisions notice and rule is that a cause of proof timely giving of the notice upon negligence action based does not part of a claimant’s case.” plaintiff accrue until has in fact discover- Dealing constitutionality of the with the ed his exercise of reasonable an limitation on the extension of time for

diligence should have it. discovered Harry Griswold, 453, incapacitated person, we stated v. 260 Chrischiiles Iowa 631, (Iowa 463, 94, Prosser, (1967); Hayles, man v. 257 636 150 N.W.2d (Fourth Law of at 144 Ed. 1977): Torts 30§ 1971). fact that have not overlooked the We genesis theory It had its in the a stat- creation rather 613A.5 is a statute of § ute of limitations should not defeat In such a statute of limitation. than

remedy slept of one who has not on his cases, legisla- general rule is that the rights simply excusably has un- but to an may its own conditions ture attach Flanagan of his cause of action. v. aware rights granted. Bennett exercise of the Hospital, Mount Eden 24 N.Y.2d General 235-236; County, 203 N.W.2d at v. Ida 427, 23, 301 N.Y.S.2d 248 N.E.2d Rasmussen, at 433. Sprung v. 180 N.W.2d (1969), However, and citations. unlike a not violate Our conclusion here does limitations, true statute of the notice re- cannot be extend- principle, surely which quirements a of 613A.5 are considered § authority impose uncon- to include ed legislative right rather restriction of of the exercise stitutional conditions on remedy. affecting than the ordi- Rules Pipe & American rights granted. See nary statutes of limitations do not neces- 538, Utah, Construction Co. v. 414 U.S. Rasmussen, sarily apply. Sprung v. (1974). 756, 713, 730 S.Ct. 38 L.Ed.2d (Iowa 1970). Compare N.W.2d 430 line with are in pronouncements These Athens, Mayor v. of Schaefer Council cre- of summary pertaining to statutes 301, (1969), Ga.App. 170 S.E.2d of Limitation found in 51 Am.Jur.2d 46, ation Miles, City Boulder v. 85 Nev. with.. (1970): 15, at 599-600 (1969). Actions § 449 P.2d 1003 be distin- h'mitation are to of Statutes Dealing constitutionality the stat create statutes which guished from ute, Perry we stated in Commu Shearer existing at common action not District, right of nity School time within (Iowa 1975): restrict law and may brought municipal action be to enforce An illustration from the tort right. Although general rule is that Miles, field City is Boulder 85 Nev. a true extinguishes statute of limitations (1969). city 449 P.2d There a only right remedy to enforce the bought graded a tract of land and right itself, not the substantive the limi- subdivision, negligently formed a but failed commencing tation time for an action compact properly. plaintiffs the soil The creating under a statute right a new en- bought lot built a house on it. Later ters into part and becomes a right city’s the soil subsided as a result of the of action itself and is a limitation not inadequate compacting, damaging earlier only also; remedy right but of the plaintiffs’ held that house. right depends to recovery upon the plaintiffs could sue “when the forces commencement of the action within the wrongfully put produce inju in motion an statute, time limit set and if that ry.” Hence point time ran from the period of elapse time is allowed to with- which the soil subsided. See also Turner v. action, out the right institution of the Staggs, 89 Nev. 510 P.2d cert. gone action is forever. The statute is denied, U.S. 94 S.Ct. an offer of an action on condition that it Montgom L.Ed.2d 486 Such time, specified commenced within the ery’s theory negligent pay case. On her and if the accepted offer is not in the ment wrong person, she was hurt only way in accepted, by which it can be negligence when that event occurred. a commencement of the action within the and the were simultaneous. specified time, the action and the longer no exist and the defendant By way of analogy, section 613A.5 covers is exempt liability. “wrongful death” as well. If next-of-kin See also 57 Municipal, Am.Jur.2d School & do not learn of a until decedent’s death Liability (1970); Petz, State Tort at 69 later, several months the “death” would not Survey of Iowa Law —Some Tort-Related time; have occurred at later it oc- Statutes, 23 Drake L.Rev. Similarly curred when the decedent died.

B. present involving negli- case is to be distin this case a tort claim for guished negligence from those in which oc gently paying money wrong person, the curred at one time but injury, “injury” payment occurred when the breach, did Montgom not occur until later. was made. “injury” The use of the word ery does injury not claim that did not the last sentence of also section 613A.5 occur when paid money clerk to Mr. ordinary signification: shows it has its Wright; on the contrary, she founds her “during person injured which the incapac- case negligence on January and claims 18 is injury giving itated his from such no- when the Rather, breach occurred. she Montgomery tice.” does claim other- claims her cause of action did not “accrue” wise. notwithstanding, She claims that her until later discovery, notwithstanding that “cause of action accrued” on later dis- section 613A.5 does running not start time covery, although section 613A.5 is not from the time causes of action “accrue.” couched in terms of accrual of causes Thus the inapplicable cases are in which action. We thus question return to the negligence occurred at one time —such as the applicability discovery rule to a failure to label a bottle —but speaks limitations statute which in terms of later, occurred as when the contents of the any “wrongful injury.” loss or bottle were consumed. Palsgraf Cf. v. jurisdictions C. Some have ameliorative Long Railroad, 339, 341, 162 Island 248 N.Y. “ language provisions in their tort-claims (1928) N.E. (Cardozo, J., C. ‘Proof of negligence air, limitations statutes. Thus tort claims in the speak, so to will not Pollock, do.’ (11th against Ed.), 455.”). government Torts the federal are barred p. In such discovery cases of the injury does not after two from the time the claim later; occur 2401(b) (1977) (with occurs later. “accrues.” 28 U.S.C. § judicial discovery rule application of the here). This provision not relevant another used in the terminology has enabled the federal courts to the same term Statute malpractice significant. By claims do not ac- the use of to hold Limitations is discovered, or until “the claimant Legislature crue intended that it this term [has] diligence in the exercise of reasonable meaning and have the same be should discovered, should have the acts constitut- in the applied in the same fashion as Quinton v. ing alleged malpractice.” of Limitations. Comment Statute States, (5th 304 F.2d Cir. United 59:8-1, Attorney Report of the General’s States, 1962). also Kubrick v. United See Immunity, 230 Sovereign on Task Force (3d 1978); F.2d 1092 Toal v. United Cir. (1972). (Emphasis States, (2d 1971). 438 F.2d 222 Cir. These Division Jersey Appellate In Bell the New are in line with the rule decisions powerless held that a to extend court malpractice accrue un- time actions lapse year from the time after the general der statutes of limitations. 61 Am. action does accrue. time a cause of Surgeons Heal- Physicians, Jur.2d & Other 44 N.Y.2d City Rye, v. Beary See also (1972); Physicians & ers cf. 70 C.J.S. § (1978) 377 N.E.2d 406 N.Y.S.2d (1951) (foreign objects Surgeons at 985 time). extending (statutory grounds for rule). rule, Idaho regard With Jersey employs both the term “ac- New farthest; gone the it has appears to have Bell and an extension clause. crual” its state tort that rule itself into embodied Camden, 139, 141, N.J.Super. County of Supreme The Idaho Court claims statute. (1977) curiam) (per 370 A.2d 887-88 “ State, quoted the statute Newlan (statute provides: claim ‘[A] 1348, 1350, appeal P.2d Idaho presented . . . not later than shall be dismissed, 423 U.S. S.Ct. day ninetieth after accrual of the cause “ ” “ against (1975): ‘Filing claims L.Ed.2d 367 action,’ but claimant who fails to ‘[a] the state . state —Time.—All claims days file notice of his claim within 90 shall ., of this act may, judge arising provisions of a . under the in the discretion secretary permitted time filed with the presented to file such notice be to and (120) year twenty the accrual of his claim within after within one hundred of state provided public entity that the has not been arose or rea- days the date the claim ”). substantially prejudiced thereby.’ discovered, Un- which- have been sonably should ” Superi- legislation, Jersey der this the New parents In that case ever is later.’ permit a exercised its discretion to Court accident but their son’s fatal were aware of malpractice patient to file her claim for they a case had they were unaware that year after she discovered the within one attorney. The an they until consulted although year from the injury, more than a time extend the fact did not held the latter Jersey Torres v. time the occurred. later The court discovery rule. under the Center, 323, N.J.Super. City Medical 140 af- injuries discovered that additional held 75, (1976). 326, 77 The court stat- 356 A.2d discovery do not invoke ter an incident ed: Lake, 98 Spirit Ralphs City v. rule. Although our courts have not had occa- 1315, P.2d Idaho when a medical mal- sion to determine City of Mayor v. & Council Cf. Schaefer mean- practice claim accrues within the Athens, 170 S.E.2d Ga.App. Act, ing meaning of the Tort Claims (1969): [emphasis original] of accrual within section our decisions D. Under of Limitations the context the Statute creation. part is of a statute 613A.5 (N.J.S.A. 2) established. is well 2A:14— sixty-day notice give sue or to Time to Lopez Swyer, A.2d 563 62 N.J. loss, inju wrongful runs from the (1973); N.J. Strully, Fernandi v. timely giv is sixty-day notice ry unless the The use of this term 173 A.2d When en, from the notice. Legislature light and then

by the in the LARSON, (dissenting). legislature sovereign immunity in Justice abolished field, municipal tort claims numerous majority’s in this I believe the decision throughout country, statutes existed disposition of case results in an erroneous some containing of them ameliorative claus- First, it con- appeal grounds. this on two es of the kind we have illustrated. The defendant, if duty by siders the breach of legislature exception an saw fit to include January, any, to have occurred in person in section 613A.5 for the who is plaintiff May, rather than in when notice, incapacitated by injury giving deposit- money bail demanded return of the but it did not see fit to insert other amelio- Because the breach oc- ed with the clerk. language juris- rative found in some other commenced in May curred in and suit was Presumably legislature dictions. wrote brought within September, the action was be; the statute as it desires the law to our six the breach and is therefore months of responsibility apply is to the statute as en- we timely regardless of whether or not acted. conclude the trial We Second, I be- apply “discovery” rule. correctly. decided the case applied, rule should be lieve AFFIRMED. making timely regardless of the duty, long date of defendant’s breach of so McCORMICK, except All Justices concur conditions are fulfilled as the section 613A.5 LARSON, JJ., REYNOLDSON, J.,C. discovery of required within the times after HARRIS, J., who dissent. breach, or after it should have been discovered in the exercise of reasonable dili- McCORMICK, (dissenting). Justice gence. merely speci- The notice of claim statute fies the action must commenced “within duty. I. Nature of defendant’s months”, six sixty-day unless the notice is given, expressly providing without when A clerk of trustee district court acts as a period begins. six month The Munici- He does deposited of funds in his office.1 pal Tort Claims Act is remedial. is liber- the funds merely duty not owe a to retain ally provision construed. The notice is a intact, preventing negligent release of them right. limitation on the It is not favored. claimed, out duty pay as here but a them Sneller, Vermeer v. rightful claimant demand. (Iowa 1971); Rasmussen, Sprung made, the demand is and the clerk When (Iowa 1970). occurs, comply, the breach of fails to uniformly it has been held that this circumstances, In these I do not believe time-barring when statutes commence affirmatively provid- the absence of words run, of the “dis- without consideration ing period the six month starts when covery” expanded rule definition of “ac- the cause of action “accrues” or “arises” Sanborn, In Washburn Land Co. v. crued.” application forecloses rule. (1912), Wis. 137 N.W. 782 former legislature negate did not use words to security with an deposited owners of land applicability. question simply its attorney, deposit in lieu of a with the clerk language by express answered in the stat- law, required to attack the order determining legislative ute. Therefore in validity property. of a tax sale of possible intent we must choose two between court said that: constructions of the statute. Under principles as a expláined in Vermeer and The check was left with Sanborn and, until Sprung, deposit specific purpose, we the for a must select construction determined, promotes so, finally it could remedy. Doing the we the case was the hold withdrawn without loss of applies. should rule not be the (1973) (funds by paid wrong 40, to 1. held sheriff 14 C.J.S. Clerks of § Court at 1246. Cf. Pitchess, party). National Auto. & Cas. Ins. Co. v. 35 62, 64-65, 649, Cal.App.3d Cal.Rptr. 651 with general to ance the rule. At 26A defend the action. Sanborn real- C.J.S. Deposits 9d(l) in is ly position was whose Court the rule stated in of trustee “[wjhere paid it duty pay money was to to his a fund in court is out to thereto, person if in the a not entitled the court will they former clients were beaten suit, restoration, its as or to McLeod he was unsuccessful. order where order if procured 9(d)(2) long litigation by in was fraud.” progress, So was Section money improperly case is parties neither of the could states withdraw “[i]n of, from, court, the money jeopardizing rights, paid their out withdrawn without person may pro- pay rightfully and it to it to the entitled thereto was Sanborn’s thereto, finally by compel motion to its restoration. party entitled and ceed a begin statute not to run The statutes of limitation are not bar to of limitations did proceeding until a . . last payment was It would such The demanded. deposit quoted approval by our hardly that if this statement was with be contended 726, in Rudolph, had made the clerk of the court State v. 240 Iowa been 732, 483, court, requires, 37 N.W.2d In that as the statute that officer case, attached, litigation, property re- was then The could the close of the sold. at to clerk gardless requiring proceeds him to sale were delivered statute property. hold in lieu of the pay money, pay refuse to it over to attached paid party clerk it to a who was not deposit because it had for more The than is entitled to We said years, six there little differ- it. that: (Em- ence between two situations. original its property, The after attach- phasis ment, custody in the court. was money represented The the attached Sanborn, 568, Wis. at 137 N.W. at 785. property was in a different form and Duke, Bank In Farmers & Merchants turned over the sheriff the clerk. (1942), an Ind.App. N.E.2d official, authority, paid to That without deposited owner bonds them in a bank wrong party]. Rudolph Richard D. [the in safekeeping. deposit was made legis. It was then in custodia they Twelve 1920. In 1926 were stolen. 731, N.W.2d 486. Rudolph, at at 240 Iowa made for their re- later demand was case, six-year turn. The court held that the stat- a Dakota quoting In from North prevent ute of limitations would not this court said: brought recovery, saying for their moneys in power “The over court that: they are dis- custody continues until its a decrees in the pursuant

There was no breach until there was to final tributed paid, and if by appellees repudiation by moneys are demand cases which moneys previ- are any cause such appellants. The fact that the bonds mere authority of ously were stolen did constitute such withdrawn without law, can, summary proceed- They might been recovered breach. have ings, Until compel their restitution. or substitution made before demand. made en- continuing The contract was a one and decree distribution forced, of the court begin summary power the statute of did not limitations compel intact.” run restitution remains until it was breached. 731-32, at Duke, Rudolph, at Ind.App. 44 N.E.2d at 240 Iowa & Credit Agricultural Bonds quoting was have breach held to occurred return, Cooperative Courtenay Farmers’ Corp. demand for the bonds’ Association, 262 N.W. despite they 66 N.D. the fact were lost in 1926 immediately. 457-58 owner knew it Casualty In & that a In National Automobile court’s conclusion in Duke Pitchess, Cal.App.3d and re- Co. v. breach did not occur demand surance until held (1973), a sheriff fusal, Cal.Rptr. might re- because the custodian paid error loss, garnishment accord- funds under covered them after their The clerk remained liable to account party out not entitled to them in them to a persons entitled there- March, Plaintiff, these funds to the entitled to who was in his long as the funds remained to so funds, upon the sheriff made demand of limitations possession, no statute 9, and 1969. The for their return on October by the bene- apply would to bar an action his that the sheriff breached held he held ficiaries for whose account he fiduciary duty paid in 1967 when upon they until made demand funds had wrong party, the suit funds to the but that to honor the him and he had refused 1970, September was commenced on same. one-year of limita timely under a statute

tions. said: Nixon, at 279. N.C.App. at 163 S.E.2d money the sheriff received the When authorities, I believe Based these Belding March from Nelson & on money payment of the bail money trustee of that he became a wrong fix and limit the party here did not plaintiff beneficiary of that was the plaintiff’s time. The funds right as of that Although that mon- trust. law, custody [Case cited.] in the Ru remained ey may commingled have with other at dolph, 240 Iowa at as to the sheriff was also a monies could have been recovered theoretically trustee, spe- it remained identifiable as a The by county any at time. breach specific purpose. cific fund held for a May occurred on its trust duties paid the When the sheriff money by made for the when demand was [Cases cited.] wrong party], he money Suit, involved to having owner. been commenced its [the fiduciary duty, his in that he September breached was therefore within 613A.5, safeguard failed to the trust fund. But of section the six-month limit breach, assuming may that Code. given plaintiff to sue on the theo- “discovery Application of the rule.” II. ry anticipatory of an breach [cases cited] require plaintiff did not to sue at that of the Tort provision The time-limit theory. repudi- time and on that A total Code, Act, 613A.5, Claims in section ation of his trust trustee starts provides part that: running of the statute of limitations damages from Every person who claims ., anticipatory but a mere breach officer, any employee municipality or bench, does not. ... In the case at agent municipality for or on of a the sheriff’s to turn over the trust death, any wrongful loss or account fund received him from Nelson & scope within the of section 613A.2 Belding until the 9th of did not accrue under common law 613A.8 or or section October, 1969, plaintiff, having by when within commence an action therefor shall judgment then recovered its months, person shall cause six unless said Johnson, garnish- made demand for the presented governing body to be involved, Any eed funds. time limits municipality sixty days within after thus, ran from date alleged wrongful loss or April added.) (Emphasis of 1967. No action a written notice . . . shall be unless such Pitchess, 64-65, therefor maintained Cal.App.3d 110 Cal. unless the ac- notice has been Rptr. at 651. tion is two after commenced within Nixon, N.C.App. In In re Estate of such notice. (1968), money S.E.2d 274 was ordered to provides that pending “discovery simply rule” held the clerk distribution clerk, named own a does not “accrue” under a statute individuals. The on his claim it, initiative, knew of paid uni- limitations until the claimant the funds to the state it, versity in the exercise under their escheat statute. The should have known of adopted by us to care. It was defendant contended the claim was barred reasonable person where a by a the harsh results statute of limitations. The court said: ameliorate 921 deciding of his claim Other courts was unaware until was too issue have al- Griswold, pursue late to it. Chrischilles v. uniformly statutorily most held that creat- 453, (1967) (suit 260 Iowa 150 N.W.2d 94 ed causes of action with built-in time limi- against architect). said there: We exceptions, mainly tations do have based injured party wholly

If an unaware policy it is un- consideration the nature of his and the cause early fair to do otherwise. In the case of it, it is may difficult to see how he States, (2d Osbourne v. United 164 F.2d 767 charged diligence sleep- with a lack of 1947), writing example, Judge Cir. Hand ing rights. on his for the second circuit held that a claimant Chrischilles, 461, bring 260 Iowa at could a “late” action under a federal N.W.2d at applied by 100. The rule has since been containing us statute time limitations as condi- legal malpractice in medical and cases. See precedent, pris- tions because he had been a Blenderman, Baines v. 223 N.W.2d 199 physically impossible oner of war and it was (Iowa 1974) Montgomery, and Cameron v. examples of to commence his action. Other (Iowa 1975). appears N.W.2d 154 “exceptions” precedent to condition time firmly rule is in established our law. myriad. bars are In cases under the Feder- Act,2 statutory upon by majori- Employers’ Liability

Two are relied al in bases ty concluding applicable statutory the rule is not patent,3 actions to set aside a 613A.5, (1) under section The Code: death,4 wrongful actions for and civil anti- Tort Claims Act is a “statute of creation” Act,5 Clayton trust actions under the vari- affecting with a built-in time limitation exceptions extending applied ous have been sue, just (2) remedy; despite the time to commence actions the Tort Claims Act does not refer to “ac- built-in time limits. crual” of the cause action but rather to The Federal Tort Act time limita- Claims “wrongful inju- the claimant’s loss or 2401(b) tion under 28 condi- U.S.C. contains ry,” and the act therefore lacks the “flexi- precedent language, as follows: bility” of traditional statutes of limitations (b) against the United A tort claim tempered by application which have been it is shall be forever barred unless States rule. presented writing appropriate We have said that our tort claims act in years after agency Federal within two right, section 613A.5 limits as well as such claim accrues or unless action remedy, in a claim the munici begun within six months after the date Rasmussen, pality. Sprung v. 180 N.W.2d mail, registered mailing, by certified or (Iowa 1970); Flynn v. Lucas Coun the claim the notice of final denial of ty Hospital, Memorial agency presented. which it was (Iowa held, 1973). however, We have never under applied rule has been that a time a statutorily bar of created regard it is despite the federal act the fact rigid permit cause of action was so as to no precedent, or time-bar ed as a condition exceptions circumstances. We See, provision. g., e. Jordan v. United have said that statutes of limitations are States, 1974); Quin (6th 503 F.2d 620 Cir. involving not favored the law in cases States, (5th ton v. Cir. United 304 F.2d “substantive” time bar of section See, 1962); States, Sneller, 532 F.2d g., 613A.5. e. Casias v. United Vermeer v. (10th 1976); (Iowa 1971); Reilly v. United Sprung, Cir. States, 1975); (8th Ciccar N.W.2d at 433. 513 F.2d 147 Cir. States, See, See, R., g., Maryland g., v. United e. 165 F.2d e. Burnett v. New York Cent. R. 2. 4. (4th 1947) (substantive-remedial 380 U.S. Cir. 85 S.Ct. 13 L.Ed.2d 941 it, dichotomy say techni the best of is “to the legalistic reasoning”). cal and See, States, g., Exploration e. Co. United 3. See, City, g., Pacific Mo. v. Federal e. Kansas 247 U.S. 38 S.Ct. 62 L.Ed. 1200 Co., 1962). (8th Electric 310 F.2d 271 Cir. States, (3d distinguished one v. United 486 F.2d Cir. of this view and cases which 1973). had extended the time limits of several other “substantive” federal statutes. The here, Specifically, as relevant a cause by saying court concluded that find “[w]e conversion, brought action for under the nothing previous supreme court case] Act,' [a Federal Tort Claims has been held not indicating Supreme that Court has to accrue until of the conversion. previous holding overruled States, cases that Missouri Bank South v. United 423 F.Supp. (D.C.Mo.1976). limitation in 571 the Act was substantive and procedural.” Id. at 531. early establishing exceptions

The cases previously rigid statutorily Supreme view of cre- appeal The Court on reversed rights ated have been referred to as “chinks appeals. the court change It did not in the armor” of the inflexible rule that previous characterization of the time limit “substantive” time limitations bar “substantive;” simply it said the label rights created.6 longer was no determinative because the Congress main issue is whether a intended important, Most the United States Su- particular result. It said that: preme rejected Court has the view that time limits per in statutes of creation are se The question basic to be answered in less flexible than “traditional” limitation whether, determining under a set merely statutes origin. because of their In facts, a statute of limitations is to be Burnett Railroad, v. New York Central 380 tolled, is one legislative “of intent wheth- U.S. 13 S.Ct. L.Ed.2d 941 er right shall be enforceable . (1965), Supreme Court considered a after the prescribed time.” [Cases cited.] claim under the Employers’ Federal Liabili- provision Classification of such a as “sub- Act, ty which contained a “substantive” stantive” “procedural” rather than does time providing limitation that “no action not determine whether or under what shall be maintained . . unless com- period may circumstances the limitation menced within three day from the expressly be extended. As this Court has cause of action accrued.” The claimant had held, period the FELA limitation is not filed an F.E.L.A. action in state court which inflexible, but, totally appropriate was dismissed for lack proper venue. circumstances, may be extended be- Eight days dismissal, after the he filed his yond years. (Emphasis added.) three action in federal court. The district court Burnett, 426-27, at at U.S. S.Ct. dismissed the federal action because it was 1053-54, 13 L.Ed.2d at 944-45. not commenced three-year within the limi- A footnote to the above statement said: tation, appeals affirmed, and the court of rejecting plaintiff’s claim that the F.E. The distinction between substantive L.A. limitation was during pend- tolled procedural ap- statutes of limitations ency of the state court action. The court of pears involving to have arisen in cases appeals said: [Authority conflicts of laws. cited.] limitation in the Act is more than While the of a limitation

[t]he embodiment merely procedural. It is contained in an provision creating right in the statute Act which right pre- created a new might conceivably which it indi- modifies scribed remedy. remedy is a legislative right cate a intent part right and is a matter of applied together limitation be when substance. Failure bring the forum, right foreign in a sued within the prescribed extinguished time the fact that the and limitation are the cause of (Emphasis added.) action. written into the same statute does not Burnett v. Railroad, legislative New York indicate a to whether Central intent as (6th 1964). F.2d Cir. court of when the statute of limitations should appeals cited several support authorities in “pro- be tolled. Thus the “substantive” — 1949). R.R., (4th Cir. 178 F.2d Scarborough Line Coast v. Atlantic Applying principles to the case at these seem to be of cedural” distinction would help deciding questions hand, of ex- certainly little no one could contend tending period. the limitation slept rights on his if he was claimant has them, capable being aware of nor neither aware of them in the exercise of reasonable Id., at 85 S.Ct. U.S. diligence. be “fair” or And what would L.E.d.2d at 944. also Glus v. Brooklin See 234-35, Terminal, “just” plaintiff’s claim under denying Eastern 359 U.S. 760, 762-63, (1959) S.Ct. L.Ed.2d the de- merely these circumstances because (F.E.L.A, extended). time bar municipality? is a fendant Supreme Court in Burnett held underly- policies I the same contend that Act, extending the time under the based discovery rule in ing application of the action, pendency of the state “ef- The rule apply equally Chrischilles here. congressional purposes fectuates the basic enunciated there should be extended to enacting in this humane and remedial [Fed- under the Tort Claims Act unless claims Employers’ Liability] eral Act as well as legislature appears to clear intent of policies those in the Act’s limita- embodied intent prevent it. I do not believe that such Burnett, provision . . . .” wording either of the established 427-28, 1054, 13 at at L.Ed.2d U.S. S.Ct. history statute or the of our rule of sover- at 945. eign immunity preceding it. deter- court in Burnett said to Jones, (Iowa In Olsen v. 209 N.W.2d intent, legislative purposes and mine 1973), timely whether we faced the issue of policies time-barring must be of statutes required in notice under 613A.5was section examined. It said that: indemnity or contribution order to claim primarily of limitations are Statutes The act did not make municipality. from a designed to to assure fairness defendants. concluded, however, face. We it clear on its justice by pre- “promote Such statutes requirement was intended to notice that the venting surprises through the revival of only in an action the in operative claims that have been allowed to slumber indemnity or jured party, not in claims for lost, memories until evidence has been contribution, saying that to hold otherwise faded, disap- have have and witnesses of the only “would not thwart the intent peared. . More- [Case cited.] abrogate summarily statute would also but over, ought relieved of the courts to be of contri important equitable principles trying the burden of stale claims when a finally were established —af bution which plaintiff slept rights. has on his Yerkes, 247 struggle Best v. long ter —in repose, pro- to policy designed This of 23, 29, 60 A.L. Iowa defendants, frequently out- tect Olsen, 209 . .” R.2d however, weighed, where the interests of N.W.2d at 66. justice require plain- vindication of the rights. tiff’s al- to was “long struggle” referred in- the one Id., insignificant compared to 13 most U.S. S.Ct. as attested volving sovereign immunity, L.Ed.2d at 945. legislature Did our Boyer our case.7 Burnett, With the “chink in the armor” under a time limit provide intend substantive-procedural dichotomy of the be- flexibili- without sufficient Tort Act Claims gaping Legislative intent and came hole. discovery a reasonable ty to accommodate policy, origin, are now the rather than the old only modified rule? If so we determining adaptabili- touchstones for wrong” to no king “the can do concept that ty exceptions previously of the time bar to wrong if the no provide he can still do now limited to “traditional” statutes of limita- away. discover it victim f'oes not tions. Boyer High Ass Athletic v. Iowa School Iowa 'n it, statutory exception “[a]ny said other period provided The short claims makes impractical illogi- discovery result would lead to application rule even more of consequences, which we should avoid imperative in tort claims act cases than in cal Olsen, meaning.” longer periods provided. searching legislative In out others with (7th Cir.) Corp., Gates Rubber 209 N.W.2d at 67. Co. USM 603, 612-13, 508 F.2d the court said: sought apply Flynn In a claimant provides stronger short statute [The] chapter discovery rule to his claim long discovery case for a rule than a one. case, concluding plaintiff 613A. That injustice resulting For probability knowledge his cause had immediate from the failure to discover meritorious re- thereby precluded from action and was unquestionably claims diminishes as rule, clearly left lying upon the Moreover, statutory period increases. open for future consideration door might risk that a defendant be unable to adopted, stating whether the rule should be greater refute an unfounded claim is in this find it neces- do not case “[w]e prospective plaintiff when a is allowed a sary question applicabili- to reach period years of five after of his discovery rule to the notice of ty of the claim when he act within two than must section 613A.5.” requirements claim discovery. origi- Flynn, 203 N.W.2d at 616. nal.) applicability In Baines we discussed the It is true that the federal statutes dis- negligence in discovery of the rule medical “accrue,” cussed use the word and the Iowa quoted cases and from a Rhode Island case Tort Claims Act disagree does not. I with require which man to seek a said a “[t]o conclusion, however, majority’s the that this remedy rights, his is before he knows of “flexibility” required Baines, denies the apply palpably unjust.” at 223 N.W.2d the discovery rule to this case. The federal 203. Baines involved a common law action extending period cases the time negligence, under the for rather than a claim under Act, Act, acts, Tort palpable Claims and similar the but the un bal- Tort Claims policy par- anced the considerations of both fairness to a claimant is no less because the ties, Congress alleged wrongdoer municipality. and This concluded did not intend is a causing to enact very inconsistency a law unwarranted hard- is the sort of characteriz ships plaintiffs. “unjust” “unsupported by In none of them as has ed in said the relaxation of the time bar valid reason” the four-member dissent special meaning High was a Boyer result of some to be v. Iowa Athletic Associ School ation, the use of the word “accrue.” 256 Iowa 127 N.W.2d This word simply means the claimant “has a to institute and maintain a suit.” considerations demonstrate to me Several Chrischilles, 260 Iowa at 150 N.W.2d at precluding application that of the Moreover, later,

99. as discussed the Iowa compatible rule here would not be with Act refers “injury,” to the claimant’s above, policy considerations discussed has been permit appli- considered to a broad presumed to be in- therefore could not be determining cation in when a “substantive” of legislature tended in the absence may time bar be extended. words express language to that effect. The

Our interpreting only cases the time of compatible limits used in the Act are not rule, section I application 613A.5 have exhibited a desire to with of avoid hardships they affirmatively require unreasonable results and believe it. Un- Act, applica- have not shown an der the time limitation com- inflexible Iowa’s Olsen, tion provisions. of its example, upon “wrongful For mences run in holding party seeking injury” that a contribution loss or of the claimant. Section or indemnity against 613A.5, municipality significant, a is not It I be- Code. is lieve, “act,” “negli- bound to the provisions notice and time of that words such as Act, the Tort despite gence,” Claims “event” are not lack of a “occurrence” or origin significant employee before found legisla- It is also that the out used. “injury” trigger ture used one of the as about his disease.

words, broadly because this has been word 552-53, Id., 242 Iowa at 47 N.W.2d at 239. applied, flexibly at least as “accrue” We also in that case: said other “substantive” limitation statutes. very purpose would defeat [I]t held, for usually example, “injury” that compensation law to first hold workmen’s period purposes commencing for of a for compen- injury disease an therefore claim, presenting compensation a worker’s sable the occurrence of the and then hold “discovered,” e., occur until i. does not actu- before workman dis- could be ally been discovered should have discov- covered the disease. diligence. ered in the exercise of reasonable Id., at Larson, at 47 N.W.2d Iowa This rule is stated Workmen’s 78.41, Compensation (rev.perm. at 15-83 Jacques distinguished the later was ed.1976): Material case of Mousel v. Bituminous & merely period The usual statute dates Co., (Iowa 1969) Supply injury, disability, from the time of Jacques that concerned use the basis accident, saying nothing about time (The “injury” in a 85.23 word section discovery of nature of the condition. 1966) employer, Code to an notice great majority Yet the of the courts have word in a while Mousel concerned use of the sufficiently impressed pro- time limitation commencement application acute unfairness a literal ceeding 85.26. for collection under section implied language this to read in an condi- However, “injury” opinion say did not suspending running of the stat- erroneously Jacques. was In defined and diligence ute until reasonable care fact, quoted interesting it it note apparent is discoverable and that a stating one “most courts authority compensable injury has been sustained. period dating the with statutes limitations added.) (Emphasis possible to injury from the have found it legis is compensation Our worker’s law a interpret running from the the statute latively right, created its time bar could time a claimant should reasonable subjected also be to a narrow condition- of his compensable known the character precedent been, analysis. It has not how Id., 767, quoting earlier claim.” at from an interpreted “inju ever. We have the word Larson, Compensa- edition 2 Workmen’s of ry” compensation in the workers’ statute 78.52, at 278. § employer poten to of a requiring notice an apparent quotes, with opinion The then injury. a Jac tial claim to mean discovered language case approval, the Chrischilles ques Co., Supply v. Farmers’ 242 Lumber & rule, discovery says that adopting the 548, (1951). Iowa 47 236 We said in considerations persuaded are not “[w]e that case that: and dis- just the commissioner suggested legislature made disease com- Since under this trict be reversed court should “injury” pensable under its term then Mousel, added.) 169 (Emphasis record.” clearly it must have meant the “occur- discusses The court then N.W.2d at 767. type “injury” this when rence” of of was actually showing plaintiff the evidence employee found out about disease. make a to knew condition in time of his To hold defeat otherwise would the obvi- Larson period. prescribed claim within the legislative purpose. employee ous a case in edition, Mousel as in a cites later hardly could be held under a apply which “the failure [to notify employer his of a disease of which facts rath- on the . . . been has knowledge. no be rule] he had It would unrea- law; . the court that er than on the legislature sonable to that conclude conduct in has that claimant’s concluded intended a construction of “occurrence of other all the light knowledge injury” of his we substitute “occur- —and the test meet point did not in fact rence mean a circumstances disease” —to disability incapacity or be the time the Larson, Workmen’s of reasonableness.” occurs, the time the 78.41, (rev.perm. may or which Compensation at 15-87 § be- develops, or ed.1976). disability incapacity necessarily the not apparent, comes application “injury” The flexible the accident. the occurrence of time of Jacques in Iowa. In addition still stands added.) (Emphasis quoted Supreme Court the United States case which approval from a California the claimant’s The statute also refers to employee can be said that: afflicted “[t]he running of commencing “loss” as ‘injured’ only when the accumu- held to be word, also, period. This has limitation lated affects of the deleterious substance See, loss. a discovered interpreted mean Thompson, manifest themselves.” Urie v. Corp. v. g., Deposit e. Federal Insurance 170, U.S. S.Ct. Co., F.2d Casualty Surety Aetna & this L.Ed. said 1970) (word in notice (5th Cir. “loss” applica- principle to us statement of “seems provision fidelity bond means date every particular” ble in relevant to the director). bank of fraud of provisions Id. time-bar of the F.E.L.A. I not we can attribute do believe ap- Pennsylvania has taken a similar be- a claimant legislature an intent bar providing per- proach with a statute him enact- injury fore his is known to brought within sonal suit must be effect, plain- ment of section 613A.5. In “ the time when the two ‘from he knows be out of court before tiff would ’ ” . . was done and not afterwards. recog- he it. This situation has been is in In a medical mal- to involve by the federal courts nized practice context, the court held Urie, 337 at ignorance.” “blameless U.S. commencing period “injury” the limitation 1292; L.Ed. at S.Ct. plain- did not occur until discovered States, 563 F.2d Exnicious United Morgan, Ayers tiff. 397 Pa. 1977). (10th Cir. A.2d 788 legislature’s use We must assume the flexibility the use of the allowed has been “injury,” such as words “injury” recognized in 100 word C.J.S. analogous interpretation flexible 468(8), Compensation at 370- Workmen’s contexts, It could have was intentional. in words used to where the differences “occurrence,” “act,” used such words as compen- periods commence of limitations terms but chose other more restrictive It states there sation claims are discussed. that, proyisions to the to. We have said as that: 613A.5, interpretation rigid of section “[a] [wjhere be made required the claim is to present- of this statute under circumstances specified within a time after the “acci- purposes nothing to meet the ed here does dent,” begins against run the time further closes for which it was enacted but occur- such claim from the date of the unwary claimants.” Vermeer the door accident, rence of the and not from Sneller, (Iowa 394-95 development, discovery, time of the no- 1971) (issue section 613A.5 of whether injury. first manifestation of employees against in suit tice must be states, however, “injury” per- It does statutory specific provision). in absence latitude, saying mit some that: Reid, 251 F.2d 691 In United States compensation an intent to bar [S]ince (5th 1958), the court considered Cir. fairly they claims before arise cannot be Tort under the Federal timeliness of a claim imputed legislature, “injury” with- rule, applied Claims Act. provision such a has been construed to the time despite the “substantive” nature of ;. compensable injury mean a . The court said: limitation in the Act. filing claim and the time for the of the outset, At the matter should begins as the time to run when we constru- accrues, it would were may which determined as compensation courts, circumstances, ap- pre- in similar Federal statute ing another similar plied concepts, including the dis- suit must be various scribing the time in which rule, covery to extend “substantive” time- approach it with filed. We do not not, a not too We need as we have on niggardliness from bar limits. begrudging vestigi- for the well attachment occasions, concealed legislation other await further sovereign’s al strict construction of wording with this matter. The of the deal which has immunity concept waiver of permits application statue —a almost when- expressly repudiated 613A; chapter policy rule to considerations legis- similar ever and wherever this and it. demand Supreme lation has been before remand the case for I would reverse and Court. cited.] [Cases in division I. In trial for the reasons stated Id., at 693. II, alternative, I would division view of I believe we should take a similar a factual determi- reverse and remand for approach Act. A narrow our Tort Claims plaintiff knew of when nation on the issue which considering the circumstances under claim, have in the exercise of her or should sovereign “permit” suits will diligence. I would submit of reasonable required by the words or tenor of not finder with the other that issue to the fact act; policy it vitiates the considerations evidence in the case. will, here, prompting its enactment and J., HARRIS, J., REYNOLDSON, C. were consequences in harsh result join this dissent. legislature. Other intended

Case Details

Case Name: Montgomery v. Polk County

Court Name: Supreme Court of Iowa

Date Published: May 30, 1979

Citation: 278 N.W.2d 911

Docket Number: 62298

Court Abbreviation: Iowa