City of South Norfolk v. Dail
| Decision Date | 26 April 1948 |
| Docket Number | Record No. 3316. |
| Citation | 187 Va. 495 |
| Court | Virginia Supreme Court |
| Parties | CITY OF SOUTH NORFOLK v. BERTHA L. DAIL. |
1. STATUTES — Repeal — Rule as to Repeal of Special Acts by General Acts. — Unless there is a plain indication of an intent that a general Act shall repeal a 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.
2. STATUTES — Repeal — Repeal by Implication Not Favored. — Repeal by implication is not favored and 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.
3. STREETS AND HIGHWAYS — Liability for Defective and Unsafe Streets and Highways — Purpose of Requiring Notice of Claim for Injury. — The purpose of section 6043a of the Code of 1942 (Michie) and the charters of various cities of the Commonwealth requiring notice of claims for damages or wrongful death sustained by reason of the negligence of the city is to afford the city authorities the opportunity to investigate the circumstances, examine the locality in which the injury is alleged to have occurred, and to discover the witnesses promptly so as to ascertain the facts while their recollections are fresh. Such provisions tend to discourage and avoid the expense of litigation because a prompt settlement may be made in a proper case. They also tend to prevent perjury and fraud.
4. STREETS AND HIGHWAYS — Liability for Defective and Unsafe Streets and Highways — Requirements as to Notice of Claim Not Jurisdictional. — While the provisions of section 6043a of the Code of 1942 (Michie) and the charters of various cities of the Commonwealth requiring notice of claims for damages or wrongful death sustained by reason of the negligence of the city are mandatory and a compliance with them is necessary they are not jurisdictional to the institution of an action against a city.
5. STREETS AND HIGHWAYS — Liability for Defective and Unsafe Streets and Highways — Effect of Failure to Give Notice of Claim. — The failure to make the allegation of notice should be taken advantage of by the city as a matter of defense to the action. It should not be held to be a complete bar to the institution of the action, nor a condition precedent to the right to institute it. In reality, the failure to give it within the prescribed time is in effect and practical operation no more than conferring upon the city a preferential benefit of a 60-day statute of limitation.
6. STREETS AND HIGHWAYS — Liability for Defective and Unsafe Streets and Highways — Time of Raising Question that No Notice of Claim Given City — Case at Bar. — In the instant case, an action against a city for damages sustained when plaintiff stepped into a hole in the sidewalk of one of the streets of the city, there was no allegation of notice of a claim for damages given to the city as required by the city's charter and section 6043a of the Code of 1942 (Michie); there was no proof that such notice was actually given and the record showed no attempt at compliance with the mandatory provisions of the statute or the charter. The question of failure to give the notice was raised for the first time in the Supreme Court of Appeals.
Held: That under Rule 22 of the Supreme Court of Appeals the question of failure to give notice came too late.
7. STREETS AND HIGHWAYS — Liability for Defective and Unsafe Streets and Highways — Contributory Negligence of Plaintiff — Case at Bar. — In the instant case, an action against a city for damages sustained when plaintiff stepped into a hole in the sidewalk of one of the streets of the city, plaintiff testified that the hole was about two feet in diameter and two and one-half inches deep. The accident occurred when there was no obstruction to her vision and the hole was in plain view but she stated that she did not see it until after she fell. She gave no excuse for not seeing the hole which was open and obvious to anyone walking on the sidewalk in the exercise of ordinary care.
Held: That according to her own testimony plaintiff was guilty of contributory negligence as a matter of law.
Error to a judgment of the Circuit Court of Norfolk county. Hon. Edward L. Oast, judge presiding.
The opinion states the case.
Jas. G. Martin & Sons and Jerry G. Bray, Jr., for the plaintiff in error.
Q. C. Davis, Jr., and Herman A. Sacks, for the defendant in error.
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 against any 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:
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...
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