Hill v. City of Fond Du Lac

• Citation: 56 Wis. 242,14 N.W. 25
• Parties: HILL AND ANOTHER v. CITY OF FOND DU LAC.
• Decision Date: 21 November 1882
• Court: United States State Supreme Court of Wisconsin

56 Wis. 242

14 N.W. 25

HILL AND ANOTHER

v.CITY OF FOND DU LAC.

Supreme Court of Wisconsin.

Filed November 21, 1882.

Appeal from circuit court, Columbia county.

The plaintiff Elizabeth fell upon a sidewalk in the city of Fond du Lac, and she and her husband bring this suit to recover damages therefor. Upon the trial the jury found a verdict for the plaintiffs of $2,500. Thereupon counsel for the defendant moved upon the minutes of the court to set aside the verdict and for a new trial, which was refused, and thereupon judgment was entered for the plaintiffs, from which this appeal is brought.Finch & Barber for respondents, William Hill and another.

George P. Knowles and W. D. Conklin, for appellant, City of Fond du Lac.

CASSODAY, J.

The cause of action alleged happened prior to the present revision of the statutes, and hence the notice required by section 1339, Rev. St., was not essential to maintain the action. It is urged by the learned counsel for the city that under the charter the lot-owner was primarily liable for the damages in question, and not the city. The provisions of the charter in question were construed by this court in Ames v. Fond du Lac, 46 Wis. 695; [S. C. 1 N. W. REP. 346.] It was there held that the charter did not impose the duty of keeping a sidewalk in repair upon the lot-owner, except where it was built by order of the common council or street commissioner, and that liability of the owner or occupant for injuries resulting from the unsafe condition of his sidewalk, in any case, depended upon his having had due notice. It does not appear from the complaint, nor the evidence in the case, that the sidewalk in question was built by order of the common council or street commissioners. Nor does it appear that such owner neglected to repair or keep such sidewalk in a safe condition, “after due notice” so to do by the city authorities. It is true, he built the walk, but the city took no exceptions to it, nor in any way sought to relieve itself from responsibity. The city having allowed the walk to be built in the manner which it was, and to remain in that condition, cannot escape liability by the mere fact that it was built by the lot-owner.

Counsel urge that the refusal to continue the cause on account of the absence of the witness George Markert, who resided at Fond du Lac, but was then and had been for about three months at Iron Mountain, Michigan, was error. The witness had been sworn on a former trial of this cause. His testimony then taken was read upon the last trial by the consent of the plaintiffs. The only diligence shown to procure his attendance in person was, in effect, a request by the city attorney before he started that he should return, and a promise on his part to do so; that about a month before the trial the city attorney saw Markert's employer and shipper and informed them when the cause would be reached for trial, and requested and urged them to allow him to attend, and they assured the attorney that he could attend, and that they would write and request him to do so; and that the attorney also wrote Markert, requesting him to attend the trial, and promising to pay him his expenses and fair compensation for so doing. Without going further into details, we are clearly of the opinion that the affidavits failed to show the requisite diligence to make it obligatory upon the court to grant the continuance under the circumstances. The charter at the time provided that “all accounts or demands against the city, before the same shall be acted upon or paid, shall be verified by affidavit before the comptroller, except salaries and amounts previously fixed and determined by law.” P. & L. Laws, 1868, c. 59, § 7.

It is urged by counsel that because the record does not show that the claim in question was verified before the comptroller before this action was commenced, that therefore it cannot be maintained, and he cites, in support of his position, Stocks v. Sheboygan, 42 Wis. 315. That was an action to recover money paid by the plaintiff to the city for certain illegal and void tax certificates, and was clearly distinguishable.

In Kelly v. Madison, 43 Wis. 638, the charter provision was that “no action shall be maintained by any person against the city of Madison upon any claim or demand until,” etc., and it was held not to include actions for personal torts. This is an action of tort, and to hold that it cannot be maintained, by reason of no demand being made, would be in direct conflict with that decision. Clearly damage claimed for tort is not an “account or demand” within the meaning of that provision. Unlike section 824, Rev. St., it does not seek to cover every “claim or cause of action,” and hence the decisions under that section are not applicable here. Nor is the charter provision in question, like that section, prohibitory in terms. It does not say that “no actions * * * shall be maintained.” It simply provides that all accounts or demands shall be verified by affidavit before the comptroller, before the same shall be acted upon or paid. It merely prohibits action by the council or payment by the treasurer of any account or demand growing out of contract, until verified as provided. Stringham v. Winnebago, 24 Wis. 594;Ruggles v. Fond du Lac, 53 Wis. 436; [S. C. 10 N. W. REP. 365;] Bradley v. Eau Claire, ante, 10. It may well be doubted whether such verification was a condition precedent to the maintenance of any action in court, and certainly not to the maintenance of an action of personal tort like this.

Error is assigned because the court refused to instruct the jury as requested: “The mere fact that there was a declivity...