City of Warren v. Davis

• Decision Date: 27 October 1885
• Citation: 43 Ohio St. 447,3 N.E. 301
• Parties: CITY OF WARREN v. DAVIS.
• Court: Ohio Supreme Court

43 Ohio St. 447

3 N.E. 301

CITY OF WARREN

v.DAVIS.

Supreme Court of Ohio.

Filed October 27, 1885.

Error to district court, Trumbull county.

David J. Davis brought an action to recover damages for injuries to his person, caused by his falling into an unguarded pit in the road-bed of Pine street, a public highway of the city of Warren, while he was walking along the street on the night of February 28, 1881. In the petition there was no allegation that Davis, before commencing his suit, filed a claim for damages with the clerk of the city of Warren. A general demurrer to the petition was filed, by which it was claimed ‘that the allegations and facts stated in said petition do not constitute a cause of action against said defendant.’ This demurrer was overruled, to which the city of Warren excepted; and then it filed an answer, in which it did not set up as a defense the failure to file a claim for such damages with the clerk of the city. On the trial it seems that no notice was taken of the failure to file the claim with such clerk; and Davis recovered a judgment which, on proceedings in error, was affirmed by the district court, and the city of Warren now seeks to reverse that judgment.

[Ohio St. 448]Jones & Gillmer, for plaintiff in error.

Thayer & Gilson, for defendant in error.

FOLLETT, J.

In this report we shall examine but one question: Was it necessary that Davis should have filed his claim for damages with the clerk of the city of Warren, and that he should have so alleged in his petition? It is claimed that this is required by section 2326 of the Revised Statutes, which is as follows:

‘No person who claims damages, arising from any cause, shall commence a suit therefor against the corporation until he files a claim for the same with the clerk of the corporation, and sixty days elapse thereafter to enable the corporation to take such steps as it may deem proper to settle or adjust the claim; but this provision shall not apply to an application for an injunction or other [Ohio St. 449]proceeding which it may be necessary for such applicant to resort to in case of urgent necessity.’

The original section before revision was as follows, (66 Ohio L. 247, § 575:)

‘No claimant for damages shall commence any suit until he shall have filed a claim therefor with the clerk of the corporation, and sixty days shall have elapsed thereafter to enable such corporation to appoint assessors to assess such damages, return the same to the proper officers, and sufficient further time shall have elapsed, not exceeding twenty days after the return of such appraisal, to enable the corporation to pay the assessment.’

This section is a small part of the statutes that provide how cities may make or improve public buildings, public places, and public streets, alleys, and highways; and that provide how damages for the same may be claimed, allowed, and adjusted; and that provide how such cities may obtain funds to pay for the same. No one claims that the original section applied to damages for personal injuries, as in this case. It was limited to damages for such improvements as therein are provided for. Has the section as revised any more extended application? The statute providing for that revision (72 Ohio L. 87) gave the commissioners power only ‘to revise and consolidate the general statute laws of the state which may be in force at the time such commissioners...