Bowles v. Richmond

• Citation: 147 Va. 720
• Parties: LOUISE E. BOWLES v. CITY OF RICHMOND.
• Decision Date: 01 October 1925
• Court: Supreme Court of Virginia

Page 720

147 Va. 720

LOUISE E. BOWLES v. CITY OF RICHMOND.

Supreme Court of Virginia, Richmond.

October 1, 1925.

Reheard May 27, 1926.

1. JOINT TORT-FEASORS — Election of Plaintiff. — At common law in case of joint wrongs, the plaintiff may at his election sue all or any one, or any intermediate number, of the wrongdoers, but in order to sue all there must be a joint wrong.

2. JOINT TORT-FEASORS — Only One Final Judgment — Different Writs of Inquiry — Election by Plaintiff. — In an action against several wrongdoers for a joint wrong, there can be only one final judgment upon the merits. There may be different writs of inquiry executed against different defendants, or the jury may find for different amounts against the defendants, but the plaintiff still retains his election to stay execution and proceed to judgment against all, then elect to accept the highest judgment, or he may dismiss the proceeding as to those defendants against whom judgment has not been taken.

3. APPEAL AND ERROR — Final Judgments and Decrees — Joint Tort-Feasors. — Until a plaintiff has dismissed the case as to the joint wrongdoers against whom he has no judgment, or signifies an intention to prosecute the action to judgment against them, as all are jointly liable there is no final judgment, therefore, there could be no appeal.

4. APPEAL AND ERROR — Final Judgments and Decrees — Joint Defendants — City and Railroad — Case at Bar. — Plaintiff brought her action for injuries received against a city and a railroad company. The city filed a special plea alleging that plaintiff had not filed with the city attorney a written statement of the particular of the accident, which was required by the city charter. The court ordered the action to be dismissed as to the city. Nothing was done in the case against the railroad company.

Held: That plaintiff might have a writ of error to this ruling. The principle that where an action is against joint wrongdoers there is no final judgment until plaintiff has dismissed the case against the other wrongdoers, did not apply in the instant case, as there was no joint interest between the defendants in the matter decided, nor did the decision relate to the merits of the case.

5. MUNICIPAL CORPORATIONS — action against City — Constitutionality of Provision Requiring Notice to City Attorney. — The provision in the charter of the city of Richmond (section 19-g, Acts 1918, page 182), requiring notice in writing before suit against the city for negligence, is constitutional.

6. MUNICIPAL CORPORATIONS — Action against City — Notice to City Attorney — Reason for the Provision. — Provisions requiring notice of the particulars and time and place of an accident before an action for negligence may be maintained against na city afford the city authorities the opportunity to investigate the circumstances, examine the locality in which the inquiry is alleged to have occurred, and to discover the witnesses promptly so as to ascertain the facts while their recollections are fresh. Such statutes tend to discourage and avoid the expense of litigation, because, if the investigation discloses legal liability a prompt settlement is both proper and probable. They also tend to prevent perjury and fraud as well as to avoid injustice growing out of the failure of the witnesses to recollect clearly occurrences long past, before they are called upon to testify, and thus better to safeguard against unfounded claims.

7. MUNICIPAL CORPORATIONS — Action against City — Notice to City Attorney — Condition Precedent — Liberal Construction. — Under statutes requiring notice of the particulars and time and place of an accident before an action for negligence may be maintained against a city, the giving of the notice is a condition precedent to the right to bring the suit, but the statute should have a liberal construction, and a substantial compliance is sufficient.

8. MUNICIPAL CORPORATIONS — Action against City — Notice to City Attorney — Actual Notice as Substitute for Written Notice — Case at Bar. — In the instant case, an action against a city for negligence, the city filed a special plea averring that the plaintiff had not filed a written notice, verified by the plaintiff or her agent, as required by the city charter (section 19-g, Acts 1918, page 182). The city attorney had complete and actual notice of the accident; thoroughly investigated its cause and the city's liability, and in writing denied all responsibility for plaintiff's injuries.

Held: That every purpose of the requirement of notice had been met, and the lack of an affidavit would not bar the plaintiff.

9. STATUTES — Mandatory or Directory. — Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt conduct of the business and by a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory, and if the act is performed but not in the time nor in the precise mode indicated, it will be sufficient if that which is done accomplishes the substantial purpose of the statute.

ON REHEARING.

10. STATUTES — Construction — Unambiguous Statute. — Courts are not to construe legislative declarations that are so unambiguous as to need no construction.

11. AFFIDAVITS — Affidavit in some Respect Defective. — An affidavit although in some respects defective may be deemed sufficient.

12. MUNICIPAL CORPORATIONS — Action against City — Notice of Injury — Verification. — Where the legislature has seen fit to declare that the notice of the particulars of the time and place of negligent injury, to be given city authorities before an action for negligence may be maintained against the city, shall be verified, the verification of the notice is a condition precedent.

13. MUNICIPAL CORPORATIONS — Action against City — Notice of Injury — Verification — Reception of Notice at Investigation as Waiver. — Where by statute or charter notice of the time and place of injury is required as a prerequisite to an action against a city for negligent injury, and the statute requires the notice to be verified, the filing of an unverified notice with the city authorities does not comply with the statute and its receipt is no waiver of its defects nor is an investigation based thereon.

14. MUNICIPAL CORPORATIONS — Action against City — Notice of Injury — Verification — Rejection of Claim as Waiver of Defects in the Notice — Case at Bar. — In the instant case, under a charter requiring notice of time and place of injury as a prerequisite to a suit against a city for negligent injury, plaintiff gave a notice to the city authorities in all respects regular except that it was not verified. The notice was not merely received but it was acted on after full investigation. Petitioner was told that the city was not liable, not because of want of verification but because of contributory negligence. In other words the plaintiff was told, no matter what may be the form of your petition you have no claim upon its merits and the city will pay you nothing.

Held: That the notice had performed its function and that the failure to verify it could no longer be relied upon to prevent a recovery. $t15. MUNICIPAL CORPORATIONS — Counsel of the City of Richmond — Authority — Notice of Negligent Injury — Case at Bar. — The charter of the city of Richmond required verified notice in writing to the city attorney as a prerequisite to a suit against a city. In the instant case plaintiff's unverified notice of injury was served on the city attorney who after investigating informed plaintiff that the city relied upon the defense of contributory negligence which was in substance a statement that the notice furnished was ample and gave the necessary data for proper investigation.

Held: That in the usual course of business the corporation counsel of the city of Richmond had the power to say that the notice was sufficient and to act thereon and that his investigation and rejection of the claim on the ground of contributory negligence was a waiver of the want of verification.

Error to a judgment of the Circuit Court of the city of Richmond, in a proceeding by motion for a judgment for damages. Judgment for the defendant. Plaintiff assigns error.

The opinion states the case.

Haw & Haw and O. L. Cole, for the plaintiff in error.

James E. Cannon, Lucius F. Cary and Richmond T. Lacy, Jr., for the defendant in error.

CHRISTIAN, J., delivered the opinion of the court.

The plaintiff, Louise E. Bowles, proceeded by motion for damages in the circuit court for the city of Richmond against the city of Richmond and the Richmond, Fredericksburg and Potomac Railroad Company for injuries received by her by reason of the negligent failure of the defendants to properly safeguard the approach on Broad street to the old bridge over the belt line of the railroad company, where the approach had been cut down and abandoned temporarily for a detour to a new bridge at grade with the street. The city of Richmond filed a special plea which averred that the plaintiff had not within six months after the cause of action accrued filed with the city attorney a written statement of the particulars of the accident, verified by the oath of the plaintiff or her agent or attorney, as required by the city charter.

The plaintiff objected to the filing of the city's plea and moved to strike it out, because the provision in the city charter was unconstitutional, which objection and motion the court overruled and the plaintiff excepted.

The defendant railroad company did not plead to the plaintiff's motion, whereupon the plaintiff filed her replication to the defendant city's plea.

The city demurred to her replication in which she joined, and upon argument the court sustained its demurrer and ordered that the action of the plaintiff be dismissed as to the defendant, the city of Richmond. Nothing was done in the case...