Carpenter v. City of St. Petersburg, 4552

• Decision Date: 07 October 1964
• Docket Number: No. 4552,4552
• Citation: 167 So.2d 772
• Parties: Paul O. CARPENTER, Jr., Appellant, v. CITY OF ST. PETERSBURG, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 772

167 So.2d 772

Paul O. CARPENTER, Jr., Appellant, v. CITY OF ST. PETERSBURG, etc., et al., Appellees.

No. 4552.

District Court of Appeal of Florida, Second District.

Oct. 7, 1964.

Robert H. Willis, of Skelton & Willis, St . Petersburg, for appellant.

Harry I. Young, City Atty., and Stanley C. Perkinson, Asst. City Atty., St. Petersburg, for appellees.

WHITE, Judge.

Plaintiff appeals a judgment for the defendant city entered on the pleadings in a negligence action. Labeled as a summary final judgment, the appealed order is based on the plaintiff's failue to give notice to the defendant city in the manner contemplated by Chapter 18896, Laws of Florida 1937. The Special Act in question requires a personal injury claimant to give written notice of his claim to the city within sixty days of the occurrence of the incident giving rise to the claim.

The pedestrian plaintiff was hit by a city owned bus. The only question presented is whether from the pleadings themselves it is clear that the defendant city must prevail. We hold that the allegations of the complaint, if true, are sufficient to estop the city from asserting this defense. Brooks v. City of Miami, Fla.App.,App.1964, 161 So.2d 675; Finneran v. City of Lake Worth, Fla.App.,App .1963, 152 So.2d 501; Tillman v. City of Pompano Beach, Fla.App.,1957, 100 So.2d 53, 65 A.L.R.2d 1273.

The issue of notice was squarely met in plaintiff's complaint. Plaintiff alleged that the city had actual notice of the time and place of the accident and the nature and extent of his injuries shortly after the occurrence; that agents of the city informed plaintiff that the claim had been investigated and that no further information or notice was required at that time; that two weeks after the accident, while plaintiff was confined to his home as a result of his injuries, plaintiff's wife personally went to the office of the city attorney for the purpose of making inquiry as to the procedure for pursuing the claim against the defendant. It was further alleged that:

* * * 'a secretary then employed in said office, inquired of the said Virginia Carpenter as to the purpose of her visit, and upon being so advised by said Virginia, said secretary thereupon examined a file of papers then located in said City Attorney's office, and she asked if the inquiry of said Virginia Carpenter was in reference to an accident to Paul Carpenter, the owner of Rapid Shoe Repair; that said Virginia Carpenter did thereupon indicate that her husband was, in fact, said Paul Carpenter, and she was then instructed by said secretary that inasmuch as the City Attorney's Office did have a record of the accident, plaintiff should wait until such time as he had ascertained the full nature, extent and costs of his injuries resulting from said accident, and then plaintiff should contact the Insurance Adjuster for the City of St. Petersburg.

'6. Plaintiff further alleges that thereafter, at approximately the end of March, 1962, Virginia Carpenter again visited the Office of the Attorneys for the City of St. Petersburg, and during this visit, a secretary employed in said Office, advised and instructed Virginia Carpenter to confer with a Mr. Pillsbury who was then the Adjuster for said Defendant City; that thereupon, said Virginia Carpenter immediately went to the office of Mr. Pillsbury for the express purpose of discussing with him, pursuant to the suggestion and instruction of the secretary in the City Attorney's Office, the facts and circumstances surrounding her husband's claim for damages against said defendant, City of St. Petersburg, Florida; that at said time and place, said Adjuster examined...