Burroughs v. The City of Lawrence, 25,397

CourtUnited States State Supreme Court of Kansas
Writing for the CourtJOHNSTON, C. J.:
Citation116 Kan. 573,227 P. 328
Decision Date05 July 1924
Docket Number25,397
PartiesMAMIE BURROUGHS, Appellee, v. THE CITY OF LAWRENCE, Appellant

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 [116 Kan. 574] 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...

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4 practice notes
  • Dunn v. Boise City, 4738
    • United States
    • United States State Supreme Court of Idaho
    • December 27, 1927
    ...812 (2); 28 Cyc. 1450 and 1452; 19 R. C. L. 1040, sec. 329; Ogle v. Kansas City (Mo. App.), 242 S.W. 115; Burroughs v. City of Lawrence, 116 Kan. 573, 227 P. 328; Reid v. Kansas City, 195 Mo.App. 457, 192 S.W. 1047; City of East Chicago v. Gilbert, 59 Ind.App. 613, 108 N.E. 29.) On the othe......
  • Commercial Standard Ins. Co. v. Garrett, No. 922
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 11, 1934
    ...our opinion vitiate the notice. Surplusage which does not mislead or prejudice does not vitiate a notice. Burroughs v. City of Lawrence, 116 Kan. 573, 227 P. 328. The commission was not misled by such statement. It disregarded such statement as surplusage, and treated the notice as effectiv......
  • Reirdon v. Wilburton Bd. of Ed., No. 53610
    • United States
    • Supreme Court of Oklahoma
    • April 22, 1980
    ...131, 117 Cal.Rptr. 475, 73 A.L.R.3d 1012 (1974); Taylor v. Los Angeles, 180 Cal.App.2d 255, 4 Cal.Rptr. 209 (1960); Burroughs v. Lawrence, 116 Kan. 573, 227 P. 328 5 It is provided by 51 O.S.Supp.1978 § 156(C): "The written notice of claim shall state the time, place and circumstances ......
  • Howell v. City of Hutchinson, No. 39686
    • United States
    • United States State Supreme Court of Kansas
    • April 9, 1955
    ...citing Cook v. City of Topeka, 75 Kan. 534, 90 P. 244; Holmes v. Kansas City, 101 Kan. 785, 168 P. 1110; Burroughs v. City of Lawrence, 116 Kan. 573, 227 P. 328; and Jones v. City of Kansas City, 145 Kan. 591, 66 P.2d 579, and that it is only fair that the time of the accident or injury be ......
4 cases
  • Dunn v. Boise City, 4738
    • United States
    • United States State Supreme Court of Idaho
    • December 27, 1927
    ...812 (2); 28 Cyc. 1450 and 1452; 19 R. C. L. 1040, sec. 329; Ogle v. Kansas City (Mo. App.), 242 S.W. 115; Burroughs v. City of Lawrence, 116 Kan. 573, 227 P. 328; Reid v. Kansas City, 195 Mo.App. 457, 192 S.W. 1047; City of East Chicago v. Gilbert, 59 Ind.App. 613, 108 N.E. 29.) On the othe......
  • Commercial Standard Ins. Co. v. Garrett, No. 922
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 11, 1934
    ...our opinion vitiate the notice. Surplusage which does not mislead or prejudice does not vitiate a notice. Burroughs v. City of Lawrence, 116 Kan. 573, 227 P. 328. The commission was not misled by such statement. It disregarded such statement as surplusage, and treated the notice as effectiv......
  • Reirdon v. Wilburton Bd. of Ed., No. 53610
    • United States
    • Supreme Court of Oklahoma
    • April 22, 1980
    ...131, 117 Cal.Rptr. 475, 73 A.L.R.3d 1012 (1974); Taylor v. Los Angeles, 180 Cal.App.2d 255, 4 Cal.Rptr. 209 (1960); Burroughs v. Lawrence, 116 Kan. 573, 227 P. 328 5 It is provided by 51 O.S.Supp.1978 § 156(C): "The written notice of claim shall state the time, place and circumstances ......
  • Howell v. City of Hutchinson, No. 39686
    • United States
    • United States State Supreme Court of Kansas
    • April 9, 1955
    ...citing Cook v. City of Topeka, 75 Kan. 534, 90 P. 244; Holmes v. Kansas City, 101 Kan. 785, 168 P. 1110; Burroughs v. City of Lawrence, 116 Kan. 573, 227 P. 328; and Jones v. City of Kansas City, 145 Kan. 591, 66 P.2d 579, and that it is only fair that the time of the accident or injury be ......

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