Aune v. City of Mandan

Decision Date24 April 1969
Docket NumberNo. 8532,8532
Citation167 N.W.2d 754
PartiesBarbara AUNE, Plaintiff and Appellant, v. CITY OF MANDAN, a municipal corporation, Defendant and Respondent. Civ.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. If the governing body of a municipality takes no formal action within sixty days of the filing of a claim pursuant to § 40--42--01, N.D.C.C., the claimant must assume that the claim is automatically rejected, pursuant to § 40--42--02, N.D.C.C.

2. The six-month statute of limitations set forth in § 40--42--03, N.D.C.C., commences running on the date a claim is rejected by the governing body of a municipality or sixty days after the claim was filed, whichever occurs first.

3. The burden of proving and establishing estoppel is placed on the party asserting it and, as the doctrine of equitable estoppel must be applied with caution against a municipality, strict proof of all the elements of estoppel is a requisite.

4. For reasons set forth in the opinion, the appellant failed to prove that the respondent waived its rights and was therefore estopped to assert the statute of limitations set forth in § 40--42--03, N.D.C.C.

William R. Mills, Bismarck, for plaintiff and appellant.

Conmy, Conmy, Rosenberg & Lucas, Bismarck, for defendant and respondent.


This is an appeal from an order issued by the District Court of Morton County, Judge C. F. Kelsch presiding, granting the defendant's, City of Mandan's, motion for permission to file an amended answer and the summary judgment of dismissal for the City of Mandan (hereinafter referred to as the City).

The appellant, Barbara Aune (hereinafter referred to as Barbara), was involved in an accident in the City of Mandan, North Dakota, on May 1, 1965. The accident allegedly resulted when Barbara drove her car into a washout on a city street. The record indicates that Barbara's husband contacted the office of the Mandan city auditor on the Monday following the accident to file a claim for damages and was informed that all claims were handled by the City's insurance company. He then proceeded directly to the insurance company's office and reported the accident. J. D. Paul, the insurance company's representative, on May 11, 1965, secured a statement from Barbara concerning the accident.

On June 25, 1965, Barbara's counsel submitted to the City of Mandan a 2-page document over his signature, containing a statement of alleged injuries to Barbara and of damages to her car.

On August 26, 1965, J. D. Paul notified Barbara's counsel that his investigation revealed no negligence on the part of the City and that any injury to Barbara resulted from her own negligence. An affidavit executed by Barbara's counsel stated that shortly after receipt of the letter from J. D. Paul, an unidentified representative of the insurance company, at an unspecified time, requested additional time in which to review the claim, since J. D. Paul had been discharged from his employment with the insurance company.

The record indicates that no further action was taken until October 5, 1966, when Barbara's counsel requested the City to act officially on the claim. On October 31, 1966, the City officially rejected the claim.

Barbara's counsel caused to be served a summons and complaint on the City on March 23, 1967, claiming negligence on the part of the City, resulting in Barbara's injuries and in property damage. The City answered on April 6, 1967, denying negligence and claiming that Barbara had failed to give proper notice and to file the necessary claim for damages required by § 40--42--01, N.D.C.C. A motion was made by the City on April 26, 1967, for permission to file an amended answer, which amended answer set forth the further defense that the action was not brought within the prescribed period pursuant to § 40--42--03, N.D.C.C.

The City made a motion for summary judgment on September 7, 1967. The trial court, after a hearing on both motions, granted the City's motion for permission to amend its answer and also granted the motion for summary judgment, on October 2, 1967. The summary judgment was entered on November 13, 1967. On November 30, 1967, Barbara appealed from the order granting permission to the City to amend its answer and from the summary judgment entered in favor of the City.

The City presented a motion to dismiss the appeal and oral argument on the motion for dismissal was had in this court on March 4, 1969. This court denied the motion to dismiss the appeal in an opinion issued on March 18, 1969 (Aune v. City of Mandan, 166 N.W.2d 559 (N.D.), and oral argument was had on the merits of the appeal on April 2, 1969.

On appeal, Barbara contends that the City should be estopped to claim the statute of limitations because the City participated in the delay and that the real party in interest was the insurance company, which should not benefit from governmental immunity; and that the duly elected City representatives cannot abdicate their judicial duties and delegate them to the insurance company. The City contends that at no time was there a signed and verified claim presented in proper form, pursuant to § 40--42--01, N.D.C.C., and that no action was instituted within the prescribed time pursuant to § 40--42--03, N.D.C.C., for commencement of such action.

Thus the first issue is whether or not the claim was sufficient to satisfy § 40--42--01, N.D.C.C., which reads:

'Any claim * * * shall be filed * * * within ninety days after the happening of such injury. Such claim shall be signed and verified by the claimant and shall describe the time, place, cause, and extent of the damage or injury, shall contain an abstract of the facts upon which the claim is based, and shall specify the amount of damages claimed therefor. * * *'

The record indicates, and Barbara's counsel candidly admitted in oral argument, that the claim made was not in strict compliance with the provisions of the statute, as it was not signed and verified by the claimant. Barbara's counsel contends, however, that the claim submitted over his signature would constitute substantial compliance with the provisions of § 40--42--01, N.D.C.C.

Statutory provisions requiring written notice to a governmental body within a short time after an injury are quite common. The purpose of this requirement is to enable the governmental body to investigate the circumstances of the injury when the evidence is fresh and the facts are still relatively clear in the minds of the parties and the witness. Knapp v. City of Omaha, 172 Neb. 78, 108 N.W.2d 419 (1961); Russell v. City of Minneapolis, 259 Minn. 355, 107 N.W.2d 711 (1961).

This court has held that the statute requiring notice be given is mandatory, and the prosecution of a proper notice is a condition precedent to any recovery. Trost v. City of Casselton, 8 N.D. 534, 79 N.W. 1071 (1899). The record indicates that a claim of sorts was filed; however, the City contends the claim was not verified and does not comply with the statute. This court has further held, however, that the notice required in making or filing a claim is a remedial matter and the statutory provision should be liberally construed in favor of the claimant; however, there must be a substantial compliance with the provisions of the statute. Hooge v. City of Milnor, 56 N.D. 285, 217 N.W. 163 (1927).

The courts have been more strict in regard to the statutory requirement of verification of a claim. It has been held by a number of courts that an unverified claim does not constitute substantial compliance with a statute requiring a verified claim. E.g., Whitson v. La Pay, 153 Cal.App.2d 584, 315 P.2d 45 (1957); Baker v. Cohen, 139 Cal.App.2d 842, 294 P.2d 518 (1956); Peterson v. Salt Lake City, 118 Utah 231, 221 P.2d 591 (1950); Merrifield v. Village of Paw Paw, 274 Mich. 550, 265 N.W. 461 (1936); 18 McQuillin, Municipal Corporations (3d ed. rev. Ellard 1963) § 53.164, p. 596. In Hoffman v. City of Palm Springs, 169 Cal.App.2d 645, 337 P.2d 521 (1959), the court stated that California followed the rule of substantial compliance and, where a reasonable attempt was made to comply with the law, it would suffice. In Hoffman a claim had been made by sending a letter to the City of Palm Springs, which letter had been signed by the injured party and her husband, and their signatures had been notarized by their attorney. The court held, however, that the claim was defective because there was no affidavit contained within the letter. The court also stated that the purpose of requiring verification is to ensure that false claims will not be made, and if a claim is verified and is false, the one making the claim may be indicted for perjury. Hoffman v. City of Palm Springs, Supra at 337 P.2d 523--524.

In Montana v. Incorporated Village of Lynbrook, 23 A.D.2d 585, 256 N.Y.S.2d 651 (1965), a New York court stated that, in the absence of a showing of prejudice to the city because of claimant's failure to verify his claim, it would not be a fatal defect, as such verification could easily be supplied by amendment.

The major purpose of § 40--42--01, N.D.C.C., is to make known to the governmental body that an injury has occurred and thus give the governmental body an opportunity to investigate the accident. Based on the record in the instant case, the City was apprised of the injury and did conduct an investigation. Admittedly, the correct practice would have been to have had the claim verified. However, because of the disposition made of this case, it is not necessary to determine whether a proper claim was filed.

The determinative issue in the case at bar is whether the action is barred by the statute of limitations. Barbara appeals from the trial court's order allowing the City to amend its answer to include the defense of Barbara's failure to comply with the statute of limitations set forth in § 40--42--03, N.D.C.C. Rule 15(a) of the North Dakota Rules of Civil...

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4 cases
  • Moulton v. State, s. 15373
    • United States
    • South Dakota Supreme Court
    • September 9, 1987
    ...the party contending the legal right is waived." Northwestern Pub. Serv. Co., 90 S.D. at 637, 244 N.W.2d at 549 (citing Aune v. City of Mandan, 167 N.W.2d 754 (N.D.1969)). See Sioux Falls Constr. Co., 297 N.W.2d at 459 (quoting Hoogterp, 85 S.D. at 180, 179 N.W.2d at 17). However, this Cour......
  • Northwestern Public Service Co. v. City of Aberdeen
    • United States
    • South Dakota Supreme Court
    • July 28, 1976
    ...elements of affirmative action, reliance and change of position is upon the party contending the legal right is waived. Aune v. City of Mandan, 1969, N.D., 167 N.W.2d 754. This burden has not been met. Plaintiff relies entirely upon the failure of defendants to enforce Ordinance 741. No cla......
  • Skoog v. City of Grand Forks
    • United States
    • North Dakota Supreme Court
    • January 29, 1981
    ...should be liberally construed in favor of the claimant; however, there must be substantial compliance with the statute. Aune v. City of Mandan, 167 N.W.2d 754 (N.D.1969); Hoge v. City of Milnor, 56 N.D. 285, 217 N.W. 163 (1927). Keeping in mind the above statutory provisions, we must determ......
  • Johnson v. Northwestern Bell Telephone Co., 10425
    • United States
    • North Dakota Supreme Court
    • September 29, 1983
    ...the principles contained therein. Id. The burden of proving each element of an estoppel is on the party asserting it. Aune v. City of Mandan, 167 N.W.2d 754, 759 (N.D.1969). Bell argues that Johnson has failed to prove: (1) that Bell made false or misleading representations; and (2) that Jo......

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