Burkard v. City of Dell Rapids
| Decision Date | 12 October 1955 |
| Docket Number | No. 9519,9519 |
| Parties | Robert BURKARD, Plaintiff and Appellant, v. CITY OF DELL RAPIDS, a Municipal Corporation, Defendant and Respondent. |
| Court | South Dakota Supreme Court |
Blaine Simons, P. O. Schiager, Sioux Falls, for plaintiff and appellant.
Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and respondent.
Plaintiff instituted this action to recover for personal injuries sustained as the result of the alleged negligence of the defendant city in failing properly to maintain a gas plant owned and operated by it. Plaintiff appeals from an adverse judgment entered upon motion of the city for judgment upon the pleadings.
The city in its answer alleged that plaintiff failed to give written notice of the time, place and cause of his injuries within sixty days after their occurrence as provided in SDC 45.1409. In his reply, plaintiff admits that he did not give notice within sixty days, but alleges the 'fact to be that he was mentally and physically incompetent to give notice in writing to the auditor of the said City of Dell Rapids of the time, place, and cause of his said injuries within sixty days following the date of said injuries as aforesaid; that he gave such written notice to the auditor of the said City of Dell Rapids within a reasonable time after he was mentally and physically capable of so doing.'
The motion for judgment on the pleadings should have been sustained only if no issue was framed thereby. Fargo v. Vincent, 6 S.D. 209, 60 N.W. 858. Appellant contends (1) that even though the statute referred to contains no exception with regard to failure or delay in giving notice, mental or physical incapacity during the time when notice should have been given permits the excusing of compliance with the notice requirement and whether appellant was rendered incapable of giving notice within time is a question for the jury; and (2) that if lack of timely notice may not be excused because of mental or physical incapacity the statute is void insofar as it attempts to require the giving of notice of injuries actionable at common law.
The pertinent provisions of SDC 45.1409 read:
It is a settled principle that with respect to liability for tort a municipal corporation has a dual character. It is immune from liability when exercising powers of a governmental character, but liability for tort ordinarily attaches when exercising a corporate or proprietary function. Jensen v. Juul, 66 S.D. 1, 278 N.W. 6, 115 A.L.R. 1280; Jerauld County v. Saint Paul-Mercury Indemnity Co., S.D., 71 N.W.2d 571. The defendant city in the operation of the public utility plant acted in a proprietary rather than a governmental capacity and the present action for damages for personal injuries resulting from negligence of the city in failing to maintain its gas plant in repair is not a statutory action, but is founded upon a common law right.
The statute does not expressly except the failure to give timely notice because of disability resulting from mental or physical incapacity. Plaintiff contends that if he had not been so severely injured by the negligence of the defendant city as to render him incapable of complying he could have given notice and would have had a remedy for the wrong inflicted and that it is unreasonable to conclude that the legislature ever intended that a municipality may escape liability by reason of its own wrongful act in rendering the injured party incapable of complying with the requirements of the state. Similar statutes have been construed in other jurisdictions and there is a divergence of authority as whether or not infancy or incapacity excuses failure to give timely notice. There are numerous cases holding that failure to comply with a notice requirement bars plaintiff's recovery despite his infancy or incapacity during the period within which notice must be given. An excerpt from Peoples v. City...
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City of Fort Wayne v. Cameron
...disability of the victim, since, in such case, the municipality could avoid the necessity of paying damages. Burkard v. City of Dell Rapids (1955), 76 S.D. 56, 72 N.W.2d 308; City of Denver v. Taylor (1930), 88 Colo. 89, 101, 292 P. 594, 598 (Butler, J., concurring). There is substantial au......
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Hagberg v. City of Sioux Falls
...statute should not preclude him from maintaining his claim. It was under these circumstances that the Court in Burkard v. City of Dell Rapids, 76 S.D. 56, 72 N.W.2d 308 (1955), held that the failure to give notice within the sixty day period was excused. The legislature therefore provided t......
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Trbovich v. City of Detroit, 17
...158 N.C. 281, 73 S.E. 888; McDonald v. City of Spring Valley (1918), 285 Ill. 52, 120 N.E. 476, 2 A.L.R. 1359; Burkard v. City of Dell Rapids (1955), 76 S.D. 56, 72 N.W.2d 308; and Maier v. City of Ketchikan (Alaska 1965), 403 P.2d 34.5 People ex rel. Whipple v. Saginaw Circuit Judge (1873)......
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Budahl v. Gordon and David Associates
...the time provided by SDCL 9-24-3, Mrs. Budahl cannot now claim the benefit of that statute. 1 Appellants cite Burkard v. City of Dell Rapids, 76 S.D. 56, 72 N.W.2d 308 (1955), for the proposition that whether timely notice was given was a fact question for the jury and should not have been ......