City of Knoxville v. Felding

• Decision Date: 27 March 1926
• Parties: CITY OF KNOXVILLE v. FELDING.
• Court: Tennessee Supreme Court

Page 47

285 S.W. 47

CITY OF KNOXVILLE v. FELDING.

Supreme Court of Tennessee.

March 27, 1926.

Error to Circuit Court, Knox County; Chas. T. Cates, Jr., Special Judge.

Action by Robert Felding against the City of Knoxville. Judgment for plaintiff was reversed by the Court of Appeals, and plaintiff brings error. Affirmed.

M. W. Egerton, W. H. Peters, Jr., and Frank Montgomery, all of Knoxville, for City of Knoxville.

W. T. Kennerly and Fred C. Houk, both of Knoxville, for Robert Felding.

COOK, J.

Robert Felding was permanently injured through the negligence of the city in failing to keep its sidewalks in a condition safe for travel at the point where Temperance street crosses the mouth of Welcker alley. At the time of the injury, Felding was 38 years old, in good health, and was earning by his labor a monthly income of from $150 to $200. The injury produced paralysis of the lower limbs, and practically destroyed his earning capacity.

The trial in the circuit court resulted in a judgment for $12,000 damages. The Court of Appeals held that the trial judge should have directed a verdict in favor of the city, because of a variance of 10 days between the date of the injury and the date given in the notice required by chapter 55, Acts of 1913. The notice conformed to the statute, but erroneously stated the date of injury as of February 7, 1922, which the proof showed occurred February 17, 1922.

As suggested by the Court of Appeals, doubtless the discrepancy was the result of an error in typing, but the court held that the cause of the variance was immaterial, in view of the mandatory provision of chapter 55, Acts of 1913. This statute makes notice of the time, place, and nature of the injury a condition precedent to the right of action. It provides that no suit shall be brought against a municipal corporation to recover damages for injuries due to the negligent condition of a street, alley, or sidewalk without written notice to the mayor, given within 90 days after the injury, and showing the date of the injury, the place of the accident, and the general nature of the injury; and the statute declares a failure to give the prescribed notice a good defense against all liability that might otherwise exist.

In Dillon on Municipal Corporations, §§ 1613, 1665, 1687, it is said that statutes requiring notice of claims growing out of tort are sustained upon the ground that the liability of the municipality in that class of cases is of statutory origin, and that the Legislature may properly annex conditions precedent to the right to recover or might take away the right altogether.

In respect to their streets and sidewalks, cities, like counties, exercise a prerogative of sovereignty delegated by the state, and it was not originally considered that they were liable for injury resulting from the negligent condition of streets and sidewalks. Now the county as an arm or agency of the state is not liable for the negligent maintenance of highways.

In the New England states where municipal government of towns was of common-law origin, it was not considered that such municipalities could be sued for the negligent maintenance of their streets, but now in all of the states, with the possible exception of South Carolina, municipal corporations are liable for injuries that result from the negligent maintenance of streets, sidewalks, and alleys. Their liability rests upon either an express statute or upon implied statutory authority to sue. In Tennessee no statute expressly authorizes the action, but liability is said to be implied from the nature of the corporate duties and the means afforded by statute to enable performance of the corporate duties. Dillon on Mun. Corp. § 1638; Memphis v. Lasser, 9 Humph. 760; Nashville v. Brown, 9 Heisk. 1, 24 Am. Rep. 289; Niblett v. Nashville, 12 Heisk. 685, 27 Am. Rep. 755; Knoxville v. Bell, 12 Lea, 158.

The Legislature, having conferred the power and imposed the duty from which the right to sue is implied, may annex to the right to sue such limitations, as a condition precedent to the right of recovery, as may be deemed expedient. Dillon Mun. Corp. §§ 1708, 1710.

The rigid application of statutes that require notice as a condition precedent to suit against the city, and the precision exacted as to time, place and nature of the injury, cannot be justified except upon the ground that originally the law forbade a recovery, and that the Legislature which could take away the remedy has annexed as a condition precedent to the right of recovery, the requirement of notice, and made mandatory a statement in the notice showing with precision the time, place, and nature of the injury. Hence the courts say that, because the Legislature has required by a mandatory statute the notice of time, place, and nature of the injury as a condition precedent to the right of recovery, no person can avail himself of the benefit of the law without strictly observing it. Such is the view of the Tennessee courts, supported by the weight of authority throughout the United States. We refer especially to cases cited in Weisman v. New York, 219 N. Y. 178, 114 N. E. 70, Ann. Cas. 1918E, 1023 (see note 1026, and 6 McQuillin, Mun. Corp. § 2714, and cases cited, and Dillon on Mun. Corp. § 1613), and to our own cases which we think it proper to refer to at this point.

In White v. Nashville, 134 Tenn. 695, 185 S. W. 721, Ann. Cas. 1917D, 960, it is said that the manifest purpose of the Legislature in passing chapter 55, Acts of 1913, was that no suit shall be brought except after notice as required by the act.

In Nashville v. Black, 142 Tenn. 405, 219 S. W. 1043, 12 A. L. R. 453, the court held the plaintiff was required to prove, as a condition precedent to the right of recovery, that the statutory notice was given.

In Thompson v. Chattanooga, 143 Tenn. 484, 226 S. W. 186, the court said:

"After a careful examination of the authorities bearing upon the question, we are of the opinion that the averment of notice was necessary to entitle the plaintiffs to...