City Of South Norfolk v. Dail

• Decision Date: 26 April 1948
• Citation: 47 S.E.2d 405,187 Va. 495
• Court: Virginia Supreme Court
• Parties: CITY OF SOUTH NORFOLK. v. DAIL.

47 S.E.2d 405

187 Va. 495

CITY OF SOUTH NORFOLK.

v.DAIL.

Supreme Court of Appeals of Virginia.

April 26, 1948.

Error to Circuit Court, Norfolk County; Edward L. Oast, Judge.

Action by Mrs. Bertha L. Dail against the City of South Norfolk for injuries suffered from fall on sidewalk. To review a judgment for plaintiff, defendant brings error.

Reversed and judgment entered for defendant.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

Jas. G. Martin & Sons, of Norfolk and Jerry G. Bray, Jr., of South Norfolk, for plaintiff in error.

Q. C. Davis, Jr. and Herman A. Sacks, both of Norfolk, for defendant in error.

GREGORY, Justice.

Mrs. Bertha L. Dail instituted her action against the City of South Norfolk for damages she alleged to have been sustained when she fell by reason of stepping in a hole" in the sidewalk on one of the streets of the city. She recovered a verdict and judgment and the city sought and obtained the present writ of error in which it is claimed that Mrs. Dail was guilty of contributory negligence as a matter of law.

After filing the first petition, the city filed a supplemental petition for a writ of error within the period of four months, claiming that Mrs. Dail had not alleged in her declaration that she had given the city notice of her injuries and claim in accordance with Code 1942 (Michie), sec. 6043a (Acts of Assembly 1938, p. 360), and that she had not proven that any notice of her claim had been given the city. For failure to allege that the notice was given, counsel for the city now, for the. first time, contend that the lower court had no jurisdiction to try the case.

It must be borne in mind that here we are not concerned with the form of the notice or its sufficiency, for no notice at all was alleged in the declaration and none was proven. The case proceeded to final judgment and it was only upon the filing of the supplemental petition for a writ of error in this court that this point was raised for the first time.

Code, section 6043a, reads as follows: "No action shall be maintained againstany city or town for injury to any person or property or for wrongful death alleged to have been sustained by reason of the negligence of the city or town, or of any officer, agent or employee thereof, unless a written statement by the claimant, his agent, attorney or representative, of the nature of the claim and of the time and place at which the injury is alleged to have occurred or been received, shall have been filed with the city attorney or town attorney, or with the mayor, or chief executive, within sixty days after such cause of action shall have accrued, except where the claimant is an infant or non compos mentis, or the injured party dies within such sixty days, such statement may be filed within one hundred and twenty days; and statements pursuant to this act shall be valid, notwithstanding any charter provision of any city or town."

Before the foregoing statute was enacted the city charter of South Norfolk (Acts of Assembly 1936, p. 191), like the charters of other cities, contained a provision requiring notice to be given to the city attorney of all claims arising against the city for damages for negligence due to the acts of the agents and servants of the city. It is in this language:

"Section 42-a. No action shall be maintained against the said city for damages for any injury to any person or property alleged to have been sustained by reason of the negligence of the city or of any officer, agent, or employee thereof, unless a written statement, verified by the oath of the claimant, his agent or attorney, or the personal representative of any decedent, whose death is the result of the alleged negligence of the city, its officers, agents or employees, of the nature of the claim and the time and place at which the injury is alleged to have occurred, or to have been received, shall have been filed with the city attorney of said city within sixty days after such cause of action shall have occurred. And no officer, agent or employees of the city shall have authority to waive such condition precedent or any of them."

Prior to the enactment of the general statute, section 6043a, the cities of the Commonwealth had been granted their own charter provisions requiring notice of claims against the city to be filed within a certain time before a negligence action against the city could be maintained. They were not uniform. The Virginia State Bar Association for many years had recommended to the General Assembly that a general Act be passed to be made applicable to all cities, to replace or supplant the provisions contained in the different charters for notice. It was argued in opposition that the problem was local in its nature and that the cities should continue to control this subject in their respective charters, but the advantages of uniformity prevailed,, the objection was overcome, and the General Assembly enacted the statute. See 1931, 1932, 1935 and 1937 reports of the Committee on Legislation and Law Reform of the State Bar Association.

Now in Virginia, the subject is regulated by the general statute which was intended to supersede the various city charter provisions. However, we find that the General Assembly failed to expressly repeal those charter provisions so we still have the subject regulated by the several charters, as well as by the general Act. The latter does not as a rule repeal a special Act, such as a city charter provision, unless, there is a plain intent to do so.

In speaking of the effect of a general Act upon a prior special Act on the same subject, we find this clear statement in 50 Am.Jur., Statutes, sec. 564, "Unless there is a plain indication of an intent that the general Act shall repeal the special Act, the special Act will continue to have effect, and the general words with which it conflicts will be restrained and modified accordingly, so that the two are to be deemed to stand together, one as the general law of the land, and the other as the law of the particular case."

In Scott v. Lichford, 164 Va. 419, 180 S.E. 393, this identical question was before the court. There it was held that repeal by implication is not favored and that the firmly established principle of law is that where two statutes are in apparent conflict it is the duty of the court, if it be reasonably possible, to give to them such a construction as will give force and. effect to each.

And in the same case, 164 Va. at page 423, 180 S.E. at page 394 quoting with approval from McQuillin on Municipal Corporations, this is said:

"In McQuillin on Muncipal Corporations, § 875, the rule is stated as follows: 'Where ntrary intention is not manifest, the general rules relating to repeals by general laws of charter and ordinance provisions and legislative acts applicable to municipal corporations, which, in effect become constituent parts of their charters, may be thus summarized:

" '1. Constructive repeals or repeals by implication are not favored.

" '2. A later statute which is general does not repeal a former one that is particular unless negative words are used, or the acts are so entirely inconsistent that they cannot stand together. Thus laws existing for the benefit of particular municipalities ordinarily are not repealed by general laws relating to the same subject-matter. Stated in different phrase, where the subsequent general law and prior special law, charter or ordinance' provisions do not conflict, they both stand, but this result must depend, of course, upon the legislative intent which is to be ascertained from an examination and comparison of the whole course of legislation relating to the subject under consideration.'

"See also, State v. Peter, 101 Minn. 462, 112 N.W. 866; Buffalo Cemetery Ass'n v. City of Buffalo, 118 N.Y. 61, 22 N.E. 962; Rogers v. Bass & Harbour Co., 64 Okl. 321, 168 P. 212."

The only case to reach this court since the enactment of section 6043a is City of Richmond v. Best, 180 Va. 429, 23 S.E.2d 224. There we expressly recognized the continued validity of a similar charter provision notwithstanding the subsequent statute and construed them together.

Similar charter provisions have been held constitutional. O'Neil v. City of Richmond, 141 Va. 168, 126 S.E. 56, and Bowles v. City of Richmond, 147 Va. 720, 129 S.E. 489, affirmed on rehearing 147 Va. 729, 133 S.E. 593.

Several purposes for such charter provisions and statutes have been given by the various courts. For instance, in Maine the purpose is stated to be that the injured person shall early commit himself to a statement of his condition when he would be more likely to describe it frankly and fairly than at a later period. See Goodwin v. City of Gardner, 84 Me. 278, 24 A. 846.

The California court, in Crescent Wharf & Warehouse Co. v. City of Los Angeles, 207 Cal. 430, 278 P. 1028, gives as the purpose that it is important to municipalities, in making preparations for carrying cities through each fiscal year, to be informed within a reasonable time in...