Boughner v. Bay City
| Decision Date | 06 April 1909 |
| Citation | 120 N.W. 597,156 Mich. 193 |
| Parties | BOUGHNER v. BAY CITY. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Certiorari to Circuit Court, Bay County; Chester L. Collins, Judge.
Action by Elizabeth Boughner against the City of Bay City. A demurrer to the declaration was overruled, and defendant brings certiorari. Affirmed and cause remanded.
Argued before BLAIR, C. J., and GRANT, HOOKER, MOORE, and McALVAY, JJ. S. G. Houghton, for appellant.
Oscar W. Baker, for appellee.
Plaintiff's declaration counts upon an injury sustained by her through a fall upon defendant's sidewalk on June 7, 1907, alleging the service of the notice hereinbefore contained on September 6, 1907. The defendant demurred to this declaration upon the ground that the notice alleged was not such as the law required. The demurrer being overruled, the defendant has brought the case here by certiorari under the provisions of Act No. 310, p. 484, Pub. Acts 1905. This statute is a sufficient answer to plaintiff's claim that certiorari does not lie in this case:
The declaration contains a copy of the notice served, viz.:
City of Bay City, Mich., in Account with Elizabeth Boughner, Dr.
June 7, 1907. To damages sustained on account of injuries received by said Elizabeth Boughner from fall caused by a loose plank and a hole in a defective sidewalk situate on the east side of Adams street, about thirty feet north from the northeast corner of McKinley and Adams streets, in front of the west side of lot 7, block 86, Lower Saginaw:
+----------------------------------------------------+
¦For pain, suffering and permanent physical¦ ¦
+------------------------------------------+---------¦
¦injuries ¦$2,600 00¦
+------------------------------------------+---------¦
¦Expenses incurred by said Elizabeth ¦ ¦
+------------------------------------------+---------¦
¦Boughner in connection with said injuries ¦200 00 ¦
+------------------------------------------+---------¦
¦Expenses incurred by said Elizabeth ¦ ¦
+------------------------------------------+---------¦
¦Boughner for care, nursing, in connection ¦ ¦
+------------------------------------------+---------¦
¦with said injuries ¦200 00 ¦
+------------------------------------------+---------¦
¦ ¦$3,000 00¦
+----------------------------------------------------+
State of Michigan, County of Bay-ss.:
Elizabeth Boughner, of the city of Bay City, Bay county, state of Michigan, being first duly sworn deposes and says that the within and foregoing is her account against the city of Bay City for injuries sustained on the seventh day of June, 1907, as shown by the foregoing statement and account; deponent further says that she verily believes that the services claimed to have been rendered and the property therein charged for were actually performed and furnished to the city of Bay City; that the sums charged in said statement and account for damages, pain and suffering, medicines, nursing and other charges, are reasonable and just, to the best of her knowledge and belief, that the same are now due and unpaid, and that no set-off exists nor have any payments been made on account thereof, except as stated herein, in such account or claim. Further deponent says not.
Elizabeth Boughner.
Subscribed and sworn to before me this 6th day of September, 1907.
Lee E. Joslyn, Notary Public, Bay Co., Mich.
My commission expires January 30, 1910.
At the time of the accident defendant's charter (Loc. Acts 1903, p. 729, No. 514) provided:
Ten days later said section was amended (Loc. Acts 1907, p. 862, No. 636) to read as follows: ...
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...554;Little v. Brousfield Co., 154 Mich. 369, 117 N. W. 903; Endlich on Statutes, § 271; Potter's Dwarris on Stat. p. 163; Boughner v. Bay City (Mich.) 120 N. W. 597. The judgment is reversed, and a new trial ...
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