Bowles v. City Of Richmond

Citation133 S.E. 593
Case DateMay 27, 1926
CourtSupreme Court of Virginia

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.

[133 S.E. 594]

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...

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26 practice notes
  • Campbell v. City of Helena, No. 6975.
    • United States
    • Montana United States State Supreme Court of Montana
    • 15 Noviembre 1932
    ...Tex. Com. App.) 267 S. W. 681;Id. (1925, Tex. Com. App.) 270 S. W. 1002;Bowles v. City of Richmond (1925) 147 Va. 720, 129 S. E. 489, 133 S. E. 593;Dunn v. Boise City (1927) 45 Idaho, 362, 262 P. 507;Hooge v. City of Milnor (1927) 56 N. D. 285, 217 N. W. 163;City of Birmingham v. Simmons (1......
  • Dunn v. Boise City, 4738
    • United States
    • United States State Supreme Court of Idaho
    • 27 Diciembre 1927
    ...Burroughs v. City of Lawrence, supra; Reid v. Kansas City, supra; Bowles v. City of Richmond, 147 Va. 720, 129 S.E. 489, (on rehearing) 133 S.E. 593; City of East Chicago v. Gilbert, supra; City of Denver v. Bradbury, 19 Colo. App. 441, 75 P. 1077; Ray v. City of Council Bluffs, 193 Iowa 62......
  • Stone v. District of Columbia, No. 12638.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 28 Junio 1956
    ...641, 194 N.E. 193 (1935). 57 City of Louisville v. Verst, 308 Ky. 46, 213 S.W.2d 517, 519 (1948); Bowles v. City of Richmond, 147 Va. 720, 133 S.E. 593 58 Technically the stipulated description of the notice is contained in an agreed motion to amend the pretrial order. 59 District of Columb......
  • Caron v. Grays Harbor County, 28984.
    • United States
    • United States State Supreme Court of Washington
    • 6 Julio 1943
    ...N.W. 93, 50 A.L.R. 1189; Cawthorn v. City of Houston, Tex.Com.App., 231 S.W. 701; Bowles v. City of Richmond, 147 Va. 720, 129 S.E. 489, 133 S.E. 593. We are of the opinion that the majority rule is in accord with the positive declaration and the manifest intendment of our own statute, and ......
  • Request a trial to view additional results
26 cases
  • Campbell v. City of Helena, No. 6975.
    • United States
    • Montana United States State Supreme Court of Montana
    • 15 Noviembre 1932
    ...Tex. Com. App.) 267 S. W. 681;Id. (1925, Tex. Com. App.) 270 S. W. 1002;Bowles v. City of Richmond (1925) 147 Va. 720, 129 S. E. 489, 133 S. E. 593;Dunn v. Boise City (1927) 45 Idaho, 362, 262 P. 507;Hooge v. City of Milnor (1927) 56 N. D. 285, 217 N. W. 163;City of Birmingham v. Simmons (1......
  • Dunn v. Boise City, 4738
    • United States
    • United States State Supreme Court of Idaho
    • 27 Diciembre 1927
    ...Burroughs v. City of Lawrence, supra; Reid v. Kansas City, supra; Bowles v. City of Richmond, 147 Va. 720, 129 S.E. 489, (on rehearing) 133 S.E. 593; City of East Chicago v. Gilbert, supra; City of Denver v. Bradbury, 19 Colo. App. 441, 75 P. 1077; Ray v. City of Council Bluffs, 193 Iowa 62......
  • Stone v. District of Columbia, No. 12638.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 28 Junio 1956
    ...641, 194 N.E. 193 (1935). 57 City of Louisville v. Verst, 308 Ky. 46, 213 S.W.2d 517, 519 (1948); Bowles v. City of Richmond, 147 Va. 720, 133 S.E. 593 58 Technically the stipulated description of the notice is contained in an agreed motion to amend the pretrial order. 59 District of Columb......
  • Caron v. Grays Harbor County, 28984.
    • United States
    • United States State Supreme Court of Washington
    • 6 Julio 1943
    ...N.W. 93, 50 A.L.R. 1189; Cawthorn v. City of Houston, Tex.Com.App., 231 S.W. 701; Bowles v. City of Richmond, 147 Va. 720, 129 S.E. 489, 133 S.E. 593. We are of the opinion that the majority rule is in accord with the positive declaration and the manifest intendment of our own statute, and ......
  • Request a trial to view additional results

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