Bowles v. City Of Richmond

• Decision Date: 27 May 1926
• Citation: 133 S.E. 593
• Parties: BOWLES . v. CITY OF RICHMOND.
• Court: Virginia Supreme Court

133 S.E. 593

BOWLES .

v.CITY OF RICHMOND.

Special Court of Appeals of Virginia.

May 27, 1926.

McLemore and Chinn, JJ., dissenting.

Error to Circuit Court of City of Richmond.

On rehearing. Former opinion affirmed, and judgment below reversed and remanded.

For former opinion, see 129 S. E. 489.

Haw & Haw, of Richmond, and O. L. Cole, of West Point, for plaintiff in error.

James E. Cannon and Lucius F. Cary, both of Richmond, for defendant in error.

HOLT, J. [1] Statutes and ordinances of the character of this in judgment are harsh in their application and are to be liberally construed. This rule is so generally adopted that it may fairly be said to be universal. But in its application of necessity it assumes that there is something to be construed. Courts are not to construe legislative declarations that are so unambiguous as to need no construction. To do so would be to darken counsel.

"On the question of whether a notice in fact is sufficiently definite as to the time, place, nature, etc., of the injury, the rule of liberal construction is generally adopted by the courts." Chicago v. Gilbert, 59 Ind. App. 613, 108 N. E. 29.

It might be that an accident described as having occurred in the Capitol Square could be shown to have occurred at the west entrance. An affidavit in some respects defective may be deemed sufficient. Melovich v. Tacoma, 135 Wash. 533, 238 P. 563. In this class of cases there is that room for construction which courts avail themselves of when injustice is threatened. But construction can never supply the total absence of a necessary allegation. Had the notice wholly failed to state where the accident occurred that omission could not be so remedied. And so rules of construction relative to the several requirements of the statute are in the instant case of little moment, although they are to be considered in determining how the statute as a whole should be dealt with, since it is no procrustean bed on which to stretch unwary litigants. It is now held that incapacity to give the notice excuses entirely compliance therewith. Randolph v. City of Springfield (Mo. App. Sept. 1925) 275 S. W. 567; Terrell v. Washington, 158 N. C. 281, 73 S. E. 888.

The Legislature has seen fit to declare that the notice shall be verified. We have nothing to do with the wisdom of this declaration. The power to do so existed and has been exercised in terms so plain as to make construction impossible. Such a requirement as a condition precedent is generally upheld. In Weisman v. City of New York, 219 N. Y. 184, 114 N. E. 1086, cited with approval in O'Neil v. City of Richmond, 141 Va. 168, 126 S. E. 56, it was said:

"In Cotriss v. Village of Medina [139 App. Div. 872, 124 N. Y. S. 507] supra, the plaintiff failed to comply with the requirement of a statute that verified claims for damages for personal injuries resulting from defective streets should be served. It was claimed that plaintiff's failure to verify her notice did not result in any injury to the defendant and, therefore, should be overlooked, but it was said in respect of this claim: 'It may be that the omission to present the proper writing or statement to the board did not result in any damage to the defendant. That is not the test. The requirement is absolute, and the question of whether injury resulted from the failure to comply with the explicit mandate of the statute is not open to proof or inquiry. If so, these and similar provisions intended to safeguard municipalities against the imposition of unjust claims would be nullified.' "

In White on Negligence of Municipal Corporations, § 687, it is said:

"Verification of Notice.—Many of the statutes require the notice to be verified by the oath of the claimant and a notice not so verified is considered in these jurisdictions the same as no notice."

Nor is the reception of such a notice any waiver of defects. In Forsyth v. City of Oswego, 191 N. Y. 441, 84 N. E. 392, 123 Am St. Rep. 605, it was held to be error for the court to refuse to charge the jury "that the reception of the notice by the city officials, its subsequent reference to the claims committee, and the alleged hearing thereon did not waive the irregularities contained in the said notice." Weisman v. City of New York, supra; Winter v. City of Niagara Falls, 190 N. Y. 198, 82 N. E. 1101, 123 Am. St. Rep. 540, 13 Ann. Cas. 486. These cases hold, and properly, not only that the reception of the notice constitutes no waiver, but that an examination into the facts and even a hearing does not. They do, however, assume that action thereon would, the test being not did the city look into the merits of the case, but did it act.

The same distinction was observed in Blumrich v. Village of Highland Park, 131 Mich. 209, 91 N. W. 129. In the very recent case of Nevala v. City of Ironwood, 232 Mich. 316, 205 N. W. 93, a petition appears to have been referred to a committee, which reported:

"We, your committee to whom was referred the claim of Mrs. Nevala for injuries sustained by her on Pine street, beg leave to report that we have given the same our consideration and feel ourselves constrained to report the disallowance of the claim."

There the court said:

"We hold that the notice acted upon by the council, by reference to a committee, with report by the committee and rejection of the claim, bars the city from now asserting want of notice. The council disallowed plaintiff's claim. Had disallowance been made without any formal notice such action would have waived notice and the same result follows the action disallowing the claim even though the notice upon which final official action was planted was technically defective. The defendant is in no position to assert want of legal notice, for it assumed the right to and did disallow plaintiff's claim upon the notice given. See Lindley v. City of Detroit, 131 Mich. 8, 90 N. W. 665, and cases there cited; Brown v. City of Owosso, 126 Mich. 91, 85 N. W. 256; Foster v. Village of Bellaire, 127 Mich. 13, 86 N. W. 383. * * *

"The following cases, cited by counsel for defendant, do not apply: In Blumrich v. Village of Highland Park, 131 Mich. 209, 91 N. W. 129, the claim was presented orally to the council by the sons of the plaintiff, and no official action taken by the council. Waiver in the case at bar rests upon action taken and not upon failure to act."

Hunter v. Village of Durand, 137 Mich. 53, 100 N. W. 191, is a case in which the notice was not verified:

"When the notice was received, none of defendant's officials objected to the lack of verification, and its common council appointed an...