Buck v. City of Hallandale

• Decision Date: 02 December 1955
• Citation: 85 So.2d 825
• Parties: David BUCK, a minor, by his next friend and father, Norman Buck; and Norman Buck, individually, Appellants, v. CITY OF HALLANDALE, a municipal corporation, Appellee.
• Court: Florida Supreme Court

Page 825

85 So.2d 825

David BUCK, a minor, by his next friend and father, Norman Buck; and Norman Buck, individually, Appellants, v. CITY OF HALLANDALE, a municipal corporation, Appellee.

Supreme Court of Florida, En Banc.

Dec. 2, 1955.

Rehearing Denied March 27, 1956.

Varon & McMorrough, Hollywood, for appellants.

Wicker & Smith, Miami, for appellee.

THOMAS, Justice.

The appellant, Norman Buck for himself and for his minor son, instituted an action to recover damages suffered in a collision between the bicycle the minor was riding and a car alleged to have been owned by R. B. Hitchcock and negligently operated by Dale Eugene Manchester. The City of Hallandale was made a defendant because, so it was charged, a dangerous condition was created at the place of the mishap when an employee of the city negligently operated a city truck in diffusing insecticides, a process commonly known as 'fogging'.

The circuit judge entered a summary judgment in favor of the city and this appeal followed. Appellant's suit met this fate because of the variance between the notice given the city and the one required by the charter to be served by anyone proposing to hold the city liable for damages flowing from tort. It is expressly provided in the charter that 'No suit shall be maintained against the City for damages arising out of any tort unless it shall be made to appear * * * that written notice of such damage was, within thirty (30) days after the receiving of the injury alleged, given to the City Commission with such reasonable specifications as to time and place and witnesses as would enable the City officers to investigate the matter.' Section 58, City Charter, Chapter 29108, Laws of Florida, Special Acts of 1953. We have italicized the parts that are relevant to the present dispute.

The appellant alleged that through his attorneys he notified the city 'in accordance with Section 58 of the Charter' but our examination of the record convinces us that his assertion is but a conclusion. The so-called notice was signed by an attorney who stated that he represented the minor, and it was addressed to the mayor. In the letter the attorney simply said that his client intended to file suit for injuries sustained by him on a stated day and that the city would be made a defendant.

It will be seen that the letter was hardly an approximation of the notice required in the statute. It was not addressed to the city commission; although the date was given, there was no specification 'as to time'; the place was not mentioned; and the requirement with reference to witnesses was ignored.

It is appellant's position that the city attorney had some knowledge of the incident and that a member of the police force had conducted an investigation. He states in the brief that it 'is not his sole position * * * that any defect * * * was necessarily waived by the * * * municipality, but * * * that any defect was cured by the actual knowledge possessed by the * * * municipality and its Commission, and by its City Attorney, and by the opportunity to investigate and the actual investigation, or by any combination of these elements in addition to the written notice.'

We have often discussed the purpose of such charter provisions and there is no need here for elaboration. Our comments on the subject may be found in Olivier v. City of St. Petersburg, Fla., 65 So.2d 71; Town of Miami Springs v. Lasseter, Fla., 60 So.2d 774; Crumbley v. City of Jacksonville, 102 Fla. 408, 135 So. 885, 138 So. 486. But we cannot agree that because the object of including such a provision in a charter is to afford the authorities an 'opportunity to investigate the matter, determine the question of liability' and consider settlement, as was written in the Olivier case (65 So.2d 75), such a requirement may be disregarded if it can be shown that the opportunity offered, or certain information was obtained, irrespective of the notice. That would lead us to the conclusion that compliance with the charter provision could be only a gesture and that, after all, the issue would be determined upon evidence of what the city discovered or, perhaps, could have discovered. We are not disposed to take such liberties with a legislative enactment.

We decide that there was not substantial compliance with the charter provision and that the condition precedent to the right to institute the action, Town of Miami Springs v. Lasseter, supra, having failed, the complaint was properly dismissed.

In his second question the appellant challenges the validity of the charter provision making the notice a prerequisite to suit, on the ground that by a special act, the practice in courts of justice was attempted to be regulated in violation of Section 20, Article III of the Constitution. We answer the question by simply remarking that in Olivier v. City of St. Petersburg, supra, the precise point was determined to the contrary.

The judgment is--

Affirmed.

DREW, C. J., and THORNAL and O'CONNELL, JJ., concur.

TERRELL, ROBERTS and HOBSON, JJ., dissent.

HOBSON, Justice (dissenting).

I cannot agree with the conclusion reached in the opinion prepared by Mr. Justice THOMAS because it appears to me that, although the notice given the city by the appellants was technically defective, the purpose of the...