City of Hastings v. Foxworthy
| Decision Date | 22 June 1895 |
| Docket Number | 6152 |
| Parties | CITY OF HASTINGS v. JEFFERSON H. FOXWORTHY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Kearney county. Tried below before BEALL, J.
REVERSED AND REMANDED.
Tibbets Morey & Ferris and A. H. Bowen, for plaintiff in error.
J. R Webster, J. L. McPheely, and B. F. Smith, contra.
See opinion for reference to authorities.
This was an action by Foxworthy against the city of Hastings to recover for personal injuries by him sustained through falling upon a sidewalk where it was alleged the city had permitted ice and snow to accumulate and remain. The case has acquired a long history. In its early course the district court overruled a demurrer to one count of the answer, and a judgment of dismissal having been entered, the plaintiff brought the case to this court, where the judgment of the district court was reversed. ( Foxworthy v. City of Hastings, 23 Neb. 772, 37 N.W. 657.) The case was remanded to the district court, a trial was had, resulting in a verdict for the defendant, and the case was again brought to this court and the judgment reversed for error in the instructions. (Foxworthy v. City of Hastings, 25 Neb. 133, 41 N.W. 132.) A second trial having resulted in another verdict for the defendant, Foxworthy again brought the case here, where it was for the third time reversed; this time for the insufficiency of the evidence. (Foxworthy v. City of Hastings, 31 Neb. 825, 48 N.W. 901.) After the cause had been the last time remanded, a change of venue was taken to Kearney county, where the case has been again tried, this trial resulting in a verdict and judgment for the plaintiff for $ 5,000. The city now brings the case here for review. Of the errors assigned we shall notice only two, which raise the same question. These are that the court erred in overruling the objection of the defendant to the introduction of any evidence on the ground that the petition does not state a cause of action; the other that the verdict is not sustained by sufficient evidence.
The city of Hastings has been, ever since the events complained of, a city of the second class having more than 5,000 inhabitants, and section 34, article 2, chapter 14, Compiled Statutes, providing for the government of such cities, is as follows: "All claims against the city must be presented in writing, with a full account of the items, verified by the oath of the claimant, or his agent, that the same is correct, reasonable, and just, and no claim (or demand) shall be audited or allowed unless presented and verified as provided for in this section; Provided, No costs shall be recovered against such city in any action brought against it for any unliquidated claim, including claims for personal injuries sustained by reason of the negligence of such city, which has not been presented to the city council to be audited; nor upon claims allowed in part, unless the recovery shall be for a greater sum than the amount allowed, with the interest thereon; Provided further, That all actions against such city for injury or damage to person or property hereafter sustained by reason of the negligence of such city must be brought within six months from the date of sustaining the same; and to maintain such action it shall be necessary that the party file in the office of the city clerk, within six months from the date of the injury or damage complained of, a statement giving full name and the time, place, nature, and circumstances of the injury or damage complained of, and the name or names of the witness or witnesses thereto." The case when first presented to this court called for a consideration of this section. The defendant had pleaded that the action was not brought within six months from the time when the plaintiff had sustained his injury. It was to this plea that the plaintiff demurred. This court held (23 Neb. 772) that that portion of the section we have quoted, requiring that actions shall be brought within six months, was invalid and that the general statute of limitations applied. The city's contention now is that notwithstanding that decision the last clause of the section is valid, and that no action can be maintained unless the plaintiff, within six months from the date of the injury, filed in the office of the city clerk a statement of the time, place, nature, and circumstances of the injury, and the names of the witnesses. The amended petition avers that the injury was sustained January 21, 1886, and that the statement was filed July 28, or more than six months thereafter. There are averred other facts by which it is sought to excuse the delay. This feature will be considered separately. The petition and proof both show that no statement was filed within the period required by the statute, and it is in this respect that the city claims that the petition and proof are defective.
The first opinion in the case related solely to that portion of the section providing a special period of limitations; but in the opinion the following language was used: While by this language there is ventured an intimation that the action would lie notwithstanding the failure to file a statement, the court expressly states that the question was not involved in the record as then presented. Since the last hearing of the case in this court it has been decided that a provision almost identical in the charter of cities of the first class having more than 25,000 inhabitants is valid, and that the filing of the statement required is a condition precedent to maintaining the action and must be alleged and proved. ( City of Lincoln v. Grant, 38 Neb. 369, 56 N.W. 995; Dayton v. City of Lincoln, 39 Neb. 74, 57 N.W. 754.) In City of Lincoln v. Grant there was cited on behalf of the contention that the statutory provision was not mandatory the language we have quoted from the first opinion in this case; and the court in the opinion in the Grant case observed that this language was a mere dictum and so intended. The opinion in the Grant case was concurred in by the author of the opinion in 23 Neb. so it is manifest that the court did not in the latter opinion undertake to decide the question. So far as any express decision or actual consideration of the question is concerned, it has never arisen in this case, and following the decision in City of Lincoln v. Grant, the question must be solved in favor of the contention of the city, unless by implication it has formerly been otherwise resolved in this case, and unless, further, the court is bound by such implied decision, so far as this case is concerned, notwithstanding its deliberate judgment to the contrary in the Grant case. The defendant in error contends that there has been such an implied decision, and that this court is so bound. To this contention counsel address an argument of great technical force, supported by very respectable authority.
Referring to the decision in 23 Neb. it will be remembered that the case was there presented to reverse the overruling of a demurrer to the answer. It is a familiar rule of pleading, repeatedly enforced by this court, that a demurrer brings up for review not only the pleading demurred to, but all prior pleadings, and judgment on the demurrer must go against that party who is guilty of the first defect. (Bennet v. Hargus, 1 Neb. 419; Hower v. Aultman, 27 Neb. 251, 42 N.W. 1039.) Regarding this rule it is, therefore, clear that the city on the first hearing could have invoked the aid of that clause of the statute we are now considering against the demurrer to its answer, and that a decision on the lines of the Grant case would have resulted in the affirmance of the judgment on the ground that the petition was defective for not pleading a compliance with the last clause of the section. It may then be fairly said that this court, by sustaining the demurrer to the answer, impliedly held that the petition did state a cause of action, and that it was, therefore, not necessary to plead, and consequently not necessary to prove, a compliance with the provision we are considering. So, again, on each of the other occasions when the case was before this court, similar considerations would have led to the affirmance of the judgments in favor of the city on the ground that notwithstanding any of the errors which in fact led to a reversal, the judgment was the only one which could have been rendered under the pleadings and proof. We think, therefore, that the defendant in error has quite clearly established the proposition that the question under consideration, had it been presented, would have controlled any of the former decisions; and that the court may be said to have already three times impliedly decided the question now before us in favor of Foxworthy, although on no occasion was that question in fact considered or actually decided.
The argument having advanced thus far, the defendant in error invokes the application of a rule which has been frequently announced by appellate courts, that a ruling once made in a case by an appellate court, while it may be overruled in other cases, is binding both upon the inferior court and upon the appellate court itself in all subsequent proceedings in the original case, and that in such...
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