Bowman v. City of Davenport

• Citation: 63 A.L.R.2d 853,243 Iowa 1135,53 N.W.2d 249
• Decision Date: 06 May 1952
• Docket Number: No. 48053,48053
• Parties: , 63 A.L.R.2d 853 BOWMAN v. CITY OF DAVENPORT.
• Court: United States State Supreme Court of Iowa

Page 249

53 N.W.2d 249

243 Iowa 1135, 63 A.L.R.2d 853

BOWMAN v. CITY OF DAVENPORT.

No. 48053.

Supreme Court of Iowa.

May 6, 1952.

Newport, Bybee & Wine, of Davenport, for appellant.

Nathan Grant and Charles Wittenmeyer, of Davenport, for appellee.

MANTZ, Justice.

In her petition filed May 10, 1951, Loretta Bowman, the plaintiff, alleges that she sustained personal injuries by reason of a defective sidewalk in the defendant city. She claimed that she fell on said sidewalk on February 14, 1951. Her petition sets forth in detail the nature and extent of her injuries and so far as then ascertainable, her personal expenses.

On the 13th of March, 1951 she filed with the City Clerk of the defendant city her verified claim, the material part of which for this appeal, is as follows:

'Statement of Claim against the City of Davenport for Personal Injuries, in compliance with Section 420.45, Code of Iowa, 1950 [I.C.A.]

State of Iowa

SS

Scott County

'I, Loretta Bowman, being first duly sworn, do depose and say as follows:

'Par. 1. That at about three o'clock P.M. on February 14, 1951, I fell on the sidewalk on the west side of Carey Street in the City of Davenport, Iowa at a point between Cambria Court and Charlotte Avenue and that I sustained the following injuries as a result of that fall; injuries to my right knee including a torn fat pad or a torn medial meniscus and other injuries to said knee requiring that said knee be operated.

'Par. 2. That as a result of said injuries, I have submitted to an operation of my knee and that the extent of my injury is undeterminable at this time and that the extent of the damages which are a consequence of said fall are also undeterminable.

'Par. 3. That according to my best information and belief the cause of the fall and the injuries was the presence of ice and snow on the sidewalk and the accumulation of ice and snow on the sidewalk which had become rough and uneven and the unevenness of the slabs which form the sidewalk.

'Par. 4. That according to my best information and belief the condition of the sidewalk which was described in paragraph three above, including the presence of ice and snow, the rough accumulation of ice and snow and the unevenness of the sidewalk was permitted by the negligence of the city of Davenport, Iowa.'

To plaintiff's petition based upon the above verified statement, defendant filed a motion to dismiss as follows:

'Comes now the defendant and moves the court to dismiss the petition of the plaintiff upon the following grounds, to wit:

'Par. 1. Plaintiff's petition fails to state a cause of action in that the written verified statement filed with the Clerk of the city of Davenport, Iowa, fails to state the amount of the damages claimed by the plaintiff as provided by section 420.45 of the 1950 Code of Iowa.

'Par. 2. That the filing of a written verified statement as provided by Section 420.45 is a condition precedent to the bringing of a suit against the defendant.'

The district court sustained said motion to dismiss, hence this appeal.

I. The decisive question presented is, 'Was the notice setting forth the verified claim sufficient under Section 420.45, Code of 1950?'

Said section 420.45 is as follows:

'Claims for personal injury--limitation. In all cases of personal injury or damage to property resulting from defective streets or sidewalks, or from any cause originating in the neglect or failure of any municipal corporation or its officers to perform their duties, no suit shall be brought against any such city after three months from the time of the injury or damage, and not then unless a written verified statement of the amount, nature, and cause of such injury or damage, and the time when and the place where such injury occurred, and the particular defect or negligence of the city or its officers which it is claimed caused or contributed to the injury or damage, shall be presented to the council or filed with the clerk within thirty days after said alleged injury or damage was sustained.'

The sole objection urged by defendant as set out in the above quoted motion to dismiss was that the written verified statement failed to state the amount of damages claimed by the plaintiff as provided in said statute.

The verified claim as above set forth describes the nature of plaintiff's injuries. The petition to which said verified claim was attached as an exhibit sets forth in detail the expenses which she has paid or incurred and growing out of her injury. No general amount was set forth in the verified claim.

This court has had before it in a number of cases the question of the sufficiency of said verified claims.

While the precise question involved in the instant case was not passed upon directly in the following cited cases, yet we think they are analogous in their application. They set forth the real nature and purpose of the verified statement; also that this court and other courts give liberal application and construction to verified statements. It will be noted that the statute makes no provision for amending said verified statement. This statement is a condition precedent to bringing action.

In the case of Bauer v. City of Dubuque, 122 Iowa 500, 98 N.W. 355, the court had before it the sufficiency of a claim filed regarding injuries caused by a defective sidewalk. The claim was filed under Sec. 1051, Code of 1897 (now 420.45, Code of 1950, I.C.A.). The defendant claimed that the notice given did not comply with the statute in that two sidewalk defects were set forth therein. The court in its opinion stated: 'The purpose of the notice is clearly defined by the language of the statute. It is to advise the municipality of the nature and cause of such injury, the time and place when and where it occurred, and the particular defect or negligence which it is claimed caused or contributed to it. * * * The time and place and the nature of his injury were specific. He was not bound to rely upon a single defect in the walk nor to confine thereto his statement of the defendant's negligence, and we think the notice was sufficient.'

The case of Luke v. City of Keokuk, 202 Iowa 1123, 211 N.W. 583, 584, was a personal injury suit wherein plaintiff alleged that she had sustained personal injuries by reason of defective streets in said city. A verified claim had been filed with the city council of Keokuk, Iowa (a special charter city) and in it the only reference to the time when the accident occurred was: 'Said [accident] having occurred in the evening of March 22d.' The court called attention to the statutory requirement that the statement set out, 'the time when and place where such injury occurred' and held that as the time was not stated the notice of the claim was not sufficient. Therein the court stated that the notice referred to was to be liberally construed.

We held in the case of Neeley v. Town of Mapleton, 139 Iowa 582, 117 N.W. 981, that the purpose of the notice is to 'convey to the town council prompt information of the time, place, and circumstances of the injury, so that an investigation may be had while the facts are fresh * * *.' Citing Owen v. City of Fort Dodge, 98 Iowa 281, 286, 67 N.W. 281; Perry v. Clarke County, 120 Iowa 96, 102, 94 N.W. 454; Teegarden v. Town of Caledonia, 50 Wis. 292, 6 N.W. 875. In that case there was no signature to the notice at all; still the court held that the notice was good, that the absence of signature to the affidavit was not jurisdictional. See also, Pardey v. Town of Mechanicsville, 112 Iowa 68, 83 N.W. 828.

The case of Blackmore v. City of Council Bluffs, 189 Iowa 157, 176 N.W. 369, was to recover for injuries received by a fall upon a defective sidewalk. The defense in part was that the notice of the injury was insufficient because it did not state the time when the injuries occurred. The court dismissed the petition and it was amended stating that the injury was received on March 11, 1915. The court held the notice sufficient and this court affirmed. This court stated that the object of the notice was to inform the city of the time, place and circumstances of the injury and thus to enable the city to make an investigation of the time and place of the injury within the sixty day period. The court cited from Howe v. Sioux County, 180 Iowa 580, 163 N.W. 411, wherein the notice statute was involved and stated its purpose was to enable the officers to investigate and further that the notice must specifically state the time of the injury, the place where and the circumstances surrounding the transaction. The court also referred to our holding in Neeley v. Town of Mapleton, supra, saying that the tendency of the courts was to construe the statute liberally, provided it is made to appear that the notice given accomplished the purpose for which it was required and that the purpose of the notice is to convey to the town council within the time limit, information as to the time, place and circumstances of the injury, so that an investigation may be made while the facts are fresh.

The case of Tredwell v. City of Waterloo, 218 Iowa 243, 251 N.W. 37, was a claim for damages alleged to have been sustained by reason of a street defect. The decisive point was as to the sufficiency of the notice served upon the city advising it of such claim. The court here held that the written notice served upon the city must specify the time, place and circumstances of the injury. The court held that the purpose of the statutory notice is to convey to the municipal officers prompt information of the time, place and circumstances of the injury so that the necessary investigation may be had. Citing Neeley v. Town of Mapleton, supra; Blackmore v. City of Council Bluffs, supra; Howe v. Sioux County, supra.

II. Defendant, a special charter city, is a municipal corporation, a creature of statute. Generally speaking its purpose is to promote the public welfare. By statute it is granted various rights and powers--to...