Anthony v. City of St. Joseph
| Decision Date | 02 January 1911 |
| Citation | 133 S.W. 371,152 Mo. App. 180 |
| Parties | ANTHONY v. CITY OF ST. JOSEPH. |
| Court | Missouri Court of Appeals |
MUNICIPAL CORPORATIONS (§ 816)—INJURIES FROM DEFECTS IN STREETS—NOTICE OF INJURY.
Where the notice, required by Rev. St. 1899, § 5724 (Ann. St. 1906, p. 2909), to be given to the city in case of injury to a person by a defect in the street, stated that the accident occurred on the 14th of August, when the petition and evidence showed that it happened on the 13th, the variance was fatal.
Appeal from Circuit Court, Buchanan County; L. J. Eastin, Judge.
Action by J. P. Anthony against the City of St. Joseph. From a judgment for plaintiff, defendant appeals. Reversed.
W. B. Norris, O. E. Shultz, and Phil. A. Slattery, for appellant. Wm. H. Sherman, for respondent.
Plaintiff's action is founded on an injury received on one of defendant's streets, which is charged to have been negligently maintained. The judgment in the trial court was for plaintiff.
The petition states and evidence shows the injury occurred on the 13th day of August, 1908, while the notice to the city, which the statute (section 5724, Rev. St. 1899 [Ann. St. 1906, p. 2909]) requires to be given, is that it occurred on the 14th of that month. The variance between the true date and the notice is fatal. Canter v. City of St. Joseph, 126 Mo. App. 629, 105 S. W. 1; Gardner v. City of New London, 63 Conn. 267, 28 Atl. 42; Larkin v. City of Boston, 128 Mass. 521; White v. Town of Stowe, 54 Vt. 510. In Gardner v. City of New London the notice was that the injury was received on the 5th of May, 1892, when, in fact, it was shown to be on the 2d of that month. The variance was held to be fatal. And the same result followed in White v. Town of Stowe, where the day and month were correctly given, but the year omitted. In this case the variance was one day; but we cannot see how any difference is to be made or distinction drawn between one day and any greater number of days.
In some states civil actions against municipalities are not allowed at all; the remedy being to punish the party chargeable with responsibility for the defect in the street. But in others, this among them, the action is allowed upon condition that the city be first notified of the time and place. This notice is a valuable safeguard for the city, and the courts have never hesitated to require it.
The judgment will be reversed. All concur.
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Hackenyos v. City of St. Louis
...of statutes like those of our own state, in regard to correctly giving notice as to the true time of injury: Anthony v. City of St. Joseph, 152 Mo. App. 180, 133 S. W. 371; Willis v. St. Joseph, 184 Mo. App. 428, 171 S. W. 27; Reid v. Kansas City, 195 Mo. App. 457, 192 S. W. 1047; Benton v.......
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Benton v. Kansas City
...S.W. 1010; Kendrick v. K.C., 237 S.W. 1011; Bersch v. Dittrick et al., 19 Mo. 129, 131; Wynn v. Coy, 43 Mo. 301, 305; Anthony v. St. Joseph, 152 Mo. App. 180, 133 S.W. 371; Koontz v. City of St. Louis, 230 Mo. App. 128, 89 S.W. (2d) 586, 588; Randolph v. City of Springfield, 302 Mo. 33, 257......
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Benton v. Kansas City
... ... 1010; ... Kendrick v. K. C., 237 S.W. 1011; Bersch v ... Dittrick et al., 19 Mo. 129, 131; Wynn v. Coy, ... 43 Mo. 301, 305; Anthony v. St. Joseph, 152 Mo.App ... 180, 133 S.W. 371; Koontz v. City of St. Louis, 230 ... Mo.App. 128, 89 S.W.2d 586, 588; Randolph v. City of ... ...
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Brickell v. Kansas City, Mo.
...C., is adopted as the opinion of the Court. All concur. 1 Hackenyos v. City of St. Louis, Mo.Sup., 203 S.W. 986; Anthony v. City of St. Joseph, 152 Mo.App. 180, 133 S.W. 371; Koontz v. City, of St. Louis, 230 Mo.App. 128, 89 S.W.2d 586; Benton v. Kansas City, 237 Mo.App. 385, 168 S.W.2d 476......