# Montgomery v. Polk County

> Supreme Court of Iowa · May 30, 1979 · 278 N.W.2d 911

URL: https://www.frixlaw.com/law-library/cases/9670160

## Case

- **Full name:** May MONTGOMERY, Appellant, v. POLK COUNTY, Iowa, Appellee
- **Court:** Supreme Court of Iowa
- **Decided:** May 30, 1979
- **Citations:** 278 N.W.2d 911; 1979 Iowa Sup. LEXIS 934
- **Precedential status:** Published
- **Opinion:** Dissent by McCORMICK
- **Judges:** Uhlenhopp, McCormick, Larson, Reynoldson, Harris
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9670160

## How later opinions describe it (automated extraction)

- finding the date of the defendant’s “negligent performance” is the date of injury, not when the plaintiff discovered the injury later

## Opinion text

McCORMICK, Justice
(dissenting).
The notice of claim statute merely specifies the action must be commenced “within six months”, unless the sixty-day notice is given, without expressly providing when the six month period begins. The Municipal Tort Claims Act is remedial. It is liberally construed. The notice provision is a limitation on the right. It is not favored. Vermeer v. Sneller, 190 N.W.2d 389, 394 (Iowa 1971); Sprung v. Rasmussen, 180 N.W.2d 430, 433 (Iowa 1970).
In these circumstances, I do not believe the absence of words affirmatively providing that the six month period starts when the cause of action “accrues” or “arises” forecloses application of the discovery rule. The legislature did not use words to negate its applicability. The question is simply not answered by express language in the statute. Therefore in determining legislative intent we must choose between two possible constructions of the statute. Under the principles expláined in Vermeer and Sprung , we must select the construction which promotes the remedy. Doing so, we should hold the discovery rule applies.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9670160. Public record. Not legal advice.