
    Emma Holman, Appellant, v. The Omaha and Council Bluffs Railway & Bridge Company, Appellee.
    1 Appeal: review: Motion for new trial. Where it does not appear from the record that any of the grounds of a motion for a new trial were affirmatively overruled, the court, on appeal, will not reverse if any of them are tenable.
    2 Discretion. The discretion of the trial court in granting a new trial will not be interfered with unless abuse is shown.
    3 Same: Agency. The evidence of defendant, a street railway, tended to show that its general superintendent had power to look after the general management of the road, but had no authority to settle claims for injuries to passengers, except with the consent of the directors, and that all settlements or agreements to waive limitations, alleged by plaintiff to have been made by him, were without authority, and that settlements with other parties made by the superintendent, were made under express authority. Held, the trial judge did not abuse his discretion in sustaining defendant’s motion for a new trial on the ground that the evidence did not show that the superintendent had implied authority to waive limitations, as alleged by plaintiff.
    
      Appeal from Pottawattamie District Court. — Hon. A. B. Ti-iornell, Judge.
    Friday, February 2, 1900.
    Action to recover -damages for personal injuries said to bave been suffered by plaintiff on o-r about May 16, 1894, in being thrown from one of defendant’s cars. The action, was commenced on the nineteenth day of March, 1897. In-order to avoid the statute of limitations, plaintiff pleaded that defendant, through its general superintendent, entered into negotiations for a settlement with plaintiff before the statute had fully run, and led plaintiff to' believe that her claim would be adjusted and paid without litigation; and that defendant is barred and estopped from pleading the statute. She further pleaded that defendant, through its said agent, promised and agreed for his company that it would waive the statute of limitations. Defendant denied the allegations of the petition showing a right of recovery, and pleaded- the bar of the statute. There was a trial to a jury, resulting in a verdict for plaintiff. On defendant’s motion this verdict was set aside, and a new trial awarded. Plaintiff appeals.
    
    Affirmed.
    
      Fliclcimger Bros, for appellant.
    
      Wright & Baldwin for appellee.
   Deemer, J.

2 3 The trial court made the following order in passing on the motion for a new trial: “Now, on this fifteenth day of June, 1898, this cause coming on for final judgment on the defendant’s motion for a new trial, and the court, being well advised in the premises, sustains said .motion on the ground that the evidence does not show that W. S. Dimmcfck, superintendent of defendant company, was authorized to waive the statute of limitations, and that, therefore, the statute of limitations had run against the plaintiff’s claim before she commenced her action; and on said grounds a new trial is granted in this- cause.” Appellant insists that this was tantamount to overruling the motion on all other grounds, and that the only question for decision is whether or not the court erred in sustaining the motion upon the ground indicated. In view of the disposition made of the case, it is perhaps unnecessary to pass upon this point. We may say, however, that it does not appear that any of the grounds of the motion were overruled, and in this condition of the record we do not reverse if any of them were tenable, for the reason that if the court ■ erred in giving its reason for sustaining the motion, such ■error would be without prejudice- There are, however, but two vital questions in the case: First, the authority of the alleged agent to waive the statute, or to do any act with reference thereto that would preclude the defendant from pleading it; and, second, the legal effect of an agreement to waive the statute, made before the bar had - fully accrued. The first is a mixed question of law and fact, .and the second purely a, question, of law. In solving these ■ questions it will be conceded, for the purpose of the case, "that plaintiff was injured through the negligence of the defendant at the time she claims. Actions for such injuries -are barred by statute unless commenced within two years from the time the cause thereof accrues. Plaintiff’s action -was not commenced in time, and she cannot recover without proof that defendant has- waived the statute of limitations, -or been guilty of such conduct as estops it from pleading "the same. The evidence'.shows that defendant is a corporation owning and operating an electric-street railway, and -that one W. S. Dimmoek was manager and general superintendent of that corporation at the time plaintiff received her ‘injuries; that plaintiff wrote to Dimmoek about her case, •and that in response thereto he called upon plaintiff, and then and there stated, in effect, that the company would settle with her, and take no. advantage of her whatsoever; that it would not plead the statute of limitations if she did not bring suit in time; that defendant would give her a 'large sum in settlement; and that he had a right to- go- around ■and see persons that, were injured, and had made settlements ’ with persons that were injurd. It also an-pears that plaintiff 'knew when the statute would bar her claim, and that she relied upon the statements and promises of Dimmoek. It ■further appears that Dimmoek visited plaintiff subsequent fio that time, and then stated to her that he could not settle because the president of the company was not at the meeting-of the board of directors, and he did not know just how much they would allow, but that the company would settle,, and would not take advantage of her, even if the claim did outlaw. Most, if not all, of this evidence was denied, and the issue raised thereby was clearly for the jury. But the-more important question remains, was the court justified in holding that the evidence failed to show authority in the-superintendent to waive the statute? The rule obtaining-in cases where the trial court sustains a motion for new trial for want of evidence is well understood. Stick motions are addressed to. the sound discretion of the trial court, and its action therein will not be interfered with, unless it is manifest that such discretion has'been improperly exercised. And this rule is especially applicable where the motion is sustained. Morgan v. Wagner, 79 Iowa, 174; Hopkins v. Knapp & Spalding Co., 92 Iowa, 212; Moran v. Harris, 63 Iowa, 390; Rogers v. Winch, 65 Iowa, 168. In the Moran Gase it is said, in effect, that when-, the trial court determines that the verdict is contrary to the' evidence, and ought to be set aside on that ground, the case' must be a. very clear one to warrant an appellate court in interfering with its action. The evidence of plaintiff tends to show that Dimmock was manager and general superintendent of the defendant, and that he did in fact settle' claims against it. But - defendant produced many witnesses, to show that he was simply general superintendent, with •power to look after the general management of the roach pertaining to employes, hiring and discharging men, running-trains, looking after machinery and office force, and all duties-incident to the superintendency of a railway that he had no authority to settle claims except by advice o-f and with consent of the board of directors or executive committee, and that he never made settlement of any claim without the express authority or approval of the board, or its said committee; that all the settlements proved b-v plaintiff to have-been, made by him were upon the authority of the company, and not in virtue of his office. It is further shown by the evidence that it was his duty to report all accidents monthly to the board of directors, and also the amounts paid in settlement thereof. A record of the board was also introduced by plaintiff, showing that Dimmock was instructed to see the plaintiff’s doctor, and ascertain what he knew of her (plaintiff’s) iniury. The court instructed, in effect, that the jury should determine the extent of the superintendent’s authority from the evidence bearing thereon, referring especially to his- previous settlements in so far as thev were known or consented to by his principal It also instructed that if he had no authority to settle claims like that of plaintiff, except as he was directed to do so by the de-fendant’sboard, or some member of its executive committee, then plaintiff’s plea of waiver of the statute or estoppel should count for nothing, and the verdict should be for the defendant. Further instructions were given to the effect that plaintiff’s plea of estoppel was of no avail without proof that the-superintendent had power to settle her claim. The- question, of apparent authority was not submitted, except as stated, and plaintiff is in no position to claim error on account thereof. Viewing the ruling in the light of the evidence and these instructions, it is apparent that there was no such abuse-of discretion as will justify us in interfering. Indeed, the-great preponderance of the evidence as it appears on the-printed page sustains the proposition of want of authority. The extent of the implied authority of a manager or general superintendent depends largely upon the nature of the business, and the degree to which it is placed under his control. It cannot be said as a matter of law that the manager and general superintendent of a railway company has the same-implied power as the general manager of a store.- A superintendent’s admissions of obligation do not necessarily bind his company (Blain v. Express Co., 69 Tex. 74 (6 S. W. Rep. 679); and, generally speaking, one who makes a contract with the president or superintendent of a corportaion is bound to take notice of limitations upon his authority (Templin v. Railway Co., 73 Iowa, 548; Smith v. Association, 12 Daly, 304); in other words, the authority of a gen- • era.1 agent is not unlimited. He is not a universal agent, and has only such powers as are expressly or impliedly conferred upon him. That Dimmoek had no express power to settle plaintiff’s claim or to waive the statute is conceded, and the •court may well have concluded that he had no implied power rto do so. The precise nature of implied authority must be •determined from the facts and circumstances disclosed by the evidence. The trial court may have found from the •evidence adduced by plaintiff that Dimmoek said to her that he had no authority to settle claims, but merely to report to the board of directors or executive committee of defendant ■ corporation. If it did so find, there is no question of implied ¡authority in the case. Aside from this, however, we are not prepared to hold that a manager or general superintendent •of a corporation has 'implied authority to waive the statute -••of limitations,. As, we. shall hereafter see, the right, of the -corporation itself to do so is a matter upon which the decided •cases are in irreconcilable conflict. The correctness of the instruction with reference to estoppel cannot, for reasons ¡already indicated, be questioned by appellant.

II. Finding, as we do, that there was no reversible error 'in sustaining the motion because of failure of plaintiff to prove the authority of Dimmoek, the other question, regarding the validity of a promise to waive the statute made before the ¡action is fully barred, need not be determined. As has been •said, the authorities on this question are in conflict, although the greater number seem to hold the promise good either as an acknowledgement of the debt,.. or by way of estoppel, •or as a conditional promise to pay fin ease the plaintiff proves its claim. The authorities pro and ‘con will be found collected in Bridges v. Stephens, 132 Mo. Sup. 524 (34 S. W. (Rep. 555. See, also Cecil v. Henderson, 121 N. C. 244 (28 S. E. Rep. 481); 13 Am & Eng. Enc. Law, 718, and cases cited; 1 Wood, Limitations of Actions (2 ed.) section 76; 2 Herman, Estoppel, section 825. Tbe doctrine that such a promise amounts to an estoppel has apparently been recognized in this state in Bishop v. Insurance Co., 69 Iowa, 184, although it appears that the limitation therein waived ■was created by contract, and not by law. As the question •does not necessarily arise on this appeal, we prefer n'ot to •definitely determine the rule unt'il the matter is presented in more extended arguments than are now before us. There was no error in sustaining the motion, and the judgment .and order appealed from is affirmed.

Granger, C. J., not sitting.  