Brandner v. City of Aberdeen, 9812

• Court: Supreme Court of South Dakota
• Citation: 78 S.D. 574,105 N.W.2d 665
• Docket Number: No. 9812,9812
• Parties: Catherine R. BRANDNER, Plaintiff and Appellant, v. CITY OF ABERDEEN, a Municipal Corporation, Defendant and Respondent.
• Decision Date: 02 November 1960

Page 665

105 N.W.2d 665

78 S.D. 574

Catherine R. BRANDNER, Plaintiff and Appellant, v. CITY OF ABERDEEN, a Municipal Corporation, Defendant and Respondent.

No. 9812.

Supreme Court of South Dakota.

Nov. 2, 1960.

D. M. Joyce, Chas. E. Gorsuch, Aberdeen, for plaintiff and appellant.

F. W. Noll, Dwight Campbell, Aberdeen, for defendant and respondent.

ROBERTS, Presiding Judge.

Catherine R. Brandner was injured in a fall on an icy sidewalk in the City of Aberdeen. She brought an action against the city and the owners and tenants in possession of the abutting property alleging that defendants were negligent in permitting snow and ice to accumulate on the sidewalk in question and thus creating and maintaining a dangerous condition causing injury to the plaintiff. The defendants other than the city did not answer, but appeared separately and moved to dismiss the complaint as to each of them for failure to state a claim upon which relief could be granted. The trial court granted the motions to dismiss. The plaintiff and defendant city are the only parties before us on appeal.

The city by its answer invoked the provisions of SDC 45.1409 which provides that no action against a municipality for negligence shall be maintained 'unless written notice of the time, place, and cause of the injury is given to the auditor or clerk by the person injured, his agent, or attorney, within sixty days after the injury. * * * Any action for such recovery must be commenced within two years from the occurrence of the accident causing the injury or death.' The defendant city filed a motion to dismiss the complaint for the reason that it failed to state a claim upon which relief could be granted.

Section 45.1409 as interpreted in Gellenbeck v. City of Mobridge, 40 S.D. 157, 166 N.W. 631, is in the nature of a statute of limitations, rather than a condition precedent necessary to commence an action, and the failure to comply is an affirmative defense to be pleaded by the party relying on it. See also Hanley v. City of Sioux Falls, 49 S.D. 91, 206 N.W. 240; Gurney v. Rapid City, 74 S.D. 194, 50 N.W.2d 360. The original complaint did not show on its face that plaintiff failed to comply with the provisions of the foregoing statute. On March 2, 1959, plaintiff with leave of court served an amended complaint and the question whether or not the dismissal of the original complaint was erroneous is not now material.

It is alleged in the amended complaint that the accident occurred on March 1, 1958; that as a result of personal injuries received by plaintiff in the accident she was confined in a hospital until March 28, 1958, and 'was continuously disabled and in bed, in a wheelchair, or on crutches until on or about the middle of June, 1958, at which time the last cast was removed'; and that 'Plaintiff admits that there was no written notice given the Defendant in regard to said accident, as required by Section 45.1409 * * * but alleges that Plaintiff was totally incapacitated for many, many months after said accident and was unable to comply with said statute'. The present action was not commenced until December 11, 1958.

Many courts have recognized the injustice of permitting a municipality to escape liability by reason of its wrongful act rendering an injured person incapable of giving notice within the time provisions of a claim statute. Annotation: 34 A.L.R.2d 725. In Burkhard v. City of Dell Rapids, 76 S.D. 56, 72 N.W.2d 308, 310, where it was alleged that plaintiff was unable because of his injuries to give notice during the statutory period and that he gave notice within a reasonable time after the expiration of his incapacity, this Court said: 'Plaintiff as we have stated proposes to show that he was incapacitated from giving written notice or causing same to be given bt an agent or attorney for more than sixty days after his injury and that the very injury for which he seeks recovery resulted from the wrongful conduct of the defendant. * * * It would seem anomalous if plaintiff rendered incapable of giving notice by the same injury for which he seeks recovery is nevertheless barred from giving notice after he regains the ability to do so.' This Court in that case held that an injured person rendered mentally or physically incapable by the injury for which recovery is sought of filing a notice within the time specified in section 45.1409 is not barred from filing one within a reasonable time after he regains the ability...