Brown v. City of Owosso

• Decision Date: 27 February 1901
• Citation: 126 Mich. 91,85 N.W. 256
• Court: Michigan Supreme Court
• Parties: BROWN v. CITY OF OWOSSO.

85 N.W. 256

126 Mich. 91

BROWN v. CITY OF OWOSSO.

Supreme Court of Michigan

February 27, 1901

Error to circuit court, Shiawassee county; Stearns F. Smith, Judge.

Action by Minnie Brown against the city of Owosso for injuries received through a defect in a sidewalk of the defendant city. From a judgment in favor of the defendant, the plaintiff brings error. Reversed.

Selden S. Miner (Spaulding, Norton & Dooling, of counsel), for appellant.

Watson & Chapman, for appellee.

HOOKER J.

The plaintiff brought an action growing out of an injury received by her through a fall upon a board sidewalk in the city of Owosso. That city is incorporated under the general law sections 3081 and 3173 of the Compiled Laws being involved in this cause. They are as follows:

'Sec 3081. The council shall audit and allow all accounts chargeable against the city, but no account or claim or contract shall be received for audit or allowance, unless it shall be accompanied by a certificate of an officer of the corporation, or an affidavit of the person rendering it, to the effect that he verily believes that the services therein charged have been actually performed or the property delivered to the city, that the sums charged therefor are reasonable and just, and to the best of his knowledge and belief, no set-off exists, nor payment has been made on account thereof, except such as are endorsed or referred to in such account or claim; and every such account shall exhibit in detail all the items making up the amount claimed and the true date of each. It shall be a sufficient defense in any court, to any action or proceeding for the collection of any demand or claim against the city for personal injuries or otherwise, that it has never been presented, certified to or verified as aforesaid, to the council for allowance.'

'Sec. 3173. The council shall have supervision and control of all public highways, bridges, streets, avenues, alleys, sidewalks and public grounds within the city, and shall cause the same to be kept in repair, and free from nuisance. No city subject to the provisions of this act shall be liable in damages sustained by any person in such city either to his person or property by reason of street, sidewalk, crosswalk, or public highway, situated in such city, unless such person shall serve or cause to be served within sixty days after such injury shall have occurred, a notice in writing upon the clerk or deputy clerk of such city, which notice shall set forth substantially the time when and place where such injury took place, the manner in which it occurred and extent of such injury as far as the same has become known, and that the person receiving such injury intends to hold the city liable for such damages as may have been sustained by him.'

The record discloses that the following notice was filed within 60 days: 'Minnie Brown, being duly sworn, deposes and says that on Sunday evening, May 29th, 1898, about the hour of nine p. m., as she was returning to her home from the Baptist Church in the city of Owosso, and was passing along and was upon the sidewalk in front of lot one, block two, on Oliver street, in the city of Owosso, she was tripped up by a loose plank upon the sidewalk which passes along upon the south side of Oliver street, in said city. By reason of being tripped up by said plank, she fell upon her right knee and right side and hip, severely injuring her knee and her ankle and injuring her right shoulder, right arm, and her right hip, and that portion of her right side in front and above the hip joint, and injuring herself internally, at and near that place. At the time she was pregnant with child, and her injuries were so great that it produced a miscarriage, and that for a long time her life was despaired of, and that she was compelled, in order to save her life, to employ two physicians and a nurse. That, although at the present time she is much improved, yet she is informed by her physicians, and so believes the truth to be, that her injuries are...