Burroughs v. The City of Lawrence

• Decision Date: 05 July 1924
• Docket Number: 25,397
• Citation: 116 Kan. 573,227 P. 328
• Parties: MAMIE BURROUGHS, Appellee, v. THE CITY OF LAWRENCE, Appellant
• Court: Kansas Supreme Court

227 P. 328

116 Kan. 573

MAMIE BURROUGHS, Appellee, v. THE CITY OF LAWRENCE, Appellant

No. 25,397

Supreme Court of Kansas

July 5, 1924

Decided July, 1924

Appeal from Douglas district court; HUGH MEANS, judge.

Affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Unsafe Condition of Sidewalk--Damages--Sufficient Notice of Claim Given the City. A notice of the claim of the plaintiff against a city of the second class for damages on account of injury to the person of the plaintiff resulting from the negligence of the city is held to be sufficient under R. S. 12-105, as a condition precedent to the maintenance of an action.

2. SAME--Surplusage in Notice. The fact that the notice otherwise sufficient, contains some surplusage does not render it ineffective or invalid.

3. SAME--Action Not Prematurely Brought. Nor can it be held that the action of the plaintiff was prematurely brought because it was commenced within four days after the notice was filed with the city clerk.

Walter G. Thiele, of Lawrence, for the appellant.

F. B. Dodds, of Lawrence, for the appellee.

OPINION

JOHNSTON, C. J.:

Did the plaintiff state a cause of action in her petition asking a recovery from the city for injuries alleged to have been sustained by her while walking over a sidewalk which the city had negligently allowed to be in an unsafe condition? was the question submitted to the district court, and from an affirmative decision this appeal is taken.

The only ground of attack is that proper and sufficient notice of plaintiff's claim for injury had not been given to the city. She alleged that the injury was sustained on January 7, 1923, and that about January 20, 1923, she served a written notice upon the mayor of the city, stating the circumstances, nature, time and place of the injury, and that the notice was served to give the city an opportunity to settle the claim without litigation. Another notice of the claim was mailed to the mayor on February 13, 1923, in which it was stated that plaintiff asked damages in the sum of $ 2,500 for the injury, because it had developed that the injury was of a permanent nature and that an operation was likely to be necessary. A third notice, and the one relied on by the plaintiff, was presented to and filed with the city clerk on March 24, 1923. The following is a copy of the notice:

"Statement of account due for personal injury to Mamie Burroughs. City of Lawrence, debtor, to Mamie Burroughs, $ 5,000.00.

"For personal injury received by fall on sidewalk in front of place of business known as the Army Stores and located at 706 Massachusetts street, Lawrence, Douglas county, Kansas; said injury received by stepping on defective covering over manhole in front of place of business as aforesaid on or about January 7, 1923, itemized as follows, to wit:

To doctor bill in amount of

$ 200.00

Loss of time by reason of injury to date

72.00

Permanent injury to health of claimant

4,500.00

Operation necessary to relieve claimant, which will necessarily

have to be

200.00

Medicine, etc., necessary

28.00

Total

$ 5,000.00"

[Attached is a verification in which there was a repetition of the cause, time and place of injury, and that claim was presented under Gen. Stat. 1915, sec. 1750.]

The action was begun on March 28, 1923. It is not contended that the sidewalk was not unsafe as alleged, nor that the injury was not suffered by reason of the defect, but defendant insists that the notice given was not in compliance with the statute; and even if it were assumed to be sufficient the bringing of the action within four days after the notice was given was premature, and the plaintiff was not entitled to bring action at that time, nor was the court warranted in hearing the cause until defendant had a reasonable time thereafter to investigate plaintiff's claim. The notice of March 24, 1923, was sufficient within the meaning of the governing statute (R. S. 12-105). The previous letters ostensible notices addressed to the mayor, calling attention to the accident and injury, were not...