Cole v. City of St. Joseph

• Decision Date: 27 May 1932
• Docket Number: No. 30289.,30289.
• Citation: 50 S.W.2d 623
• Parties: COLE v. CITY OF ST. JOSEPH.
• Court: Missouri Supreme Court

50 S.W.2d 623

COLE v. CITY OF ST. JOSEPH.

No. 30289.

Supreme Court of Missouri, Division No. 1.

May 27, 1932.

Appeal from Circuit Court, Platte County; Guy B. Park, Judge.

Action by Minnie Cole against the City of St. Joseph. Judgment for defendant, and plaintiff appeals.

Affirmed.

Melvin J. Duvall, of St. Joseph, Gresham & Gresham, of Platte City, and W. J. Boyd, of St. Joseph, for appellant.

Richard M. Duncan, of St. Joseph, for respondent.

STURGIS, C.

This is a suit for $20,000 damages for personal injuries alleged to have been caused to plaintiff by a defective sidewalk along one of defendant's streets. Plaintiff claims that while walking along the sidewalk on the east side of Williams street she had to ascend three or four steps constituting part of the sidewalk and in doing so one of such steps gave way and caused her to fall. The city had allowed this step to become decayed and insecure. On the trial of the case the verdict was for defendant. The plaintiff filed her motion for new trial, alleging that the verdict was against the weight of the evidence and that the court erred in giving erroneous instructions to the jury, especially one authorizing the jury to find for defendant on the ground of plaintiff's contributory negligence. The record shows that the trial judge was about to grant plaintiff a new trial on the grounds just stated and would have done so had it not appeared from the record that plaintiff had not complied with the requirements of section 6454, Rev. St. 1929. For this reason the court overruled the motion for new trial, and plaintiff has appealed.

This section of the statute relates to cities of the first class and is applicable to the defendant city. It provides: "No action shall be maintained against any city of the first class on account of any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city, unless notice shall first have been given in writing, verified by affidavit, to the mayor of said city, within sixty days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, and the character and circumstances of the injury, and that the person so injured will claim damages therefor from such city."

Had the trial court granted plaintiff a new trial on the ground that the verdict was against the weight of the evidence, we would hardly have interfered with its discretion in that respect. The question presented, therefore, is whether the trial court did right in refusing to grant plaintiff a new trial, although the court had erred in giving instructions to the jury and was convinced that the verdict for defendant was wrong and ought to be set aside as against the weight of the evidence.

The plaintiff concedes that her action is one on account of injuries growing out of a defect in the condition of a sidewalk in defendant city and that she did not give, in writing, a notice, verified by affidavit, to defendant's mayor within sixty days of her alleged fall and injury, specifying when and where she was injured and the character and circumstances of such injury. The claim of plaintiff is that she brought this suit within the sixty-day period specified by the statute for giving such notice, and that she set out in her petition all the facts required by the statute, and that a copy of such petition, along with the summons, was served on the mayor of defendant city within the sixty-day limit. She claims that this is a sufficient compliance with the statute. She also claims that defendant waived the giving of the required notice by answering and proceeding to trial without raising this point in some manner till it was too late for plaintiff to give such notice.

This and similar statutes relating to other cities have been in force many years and have been before the courts many times. An identical statute is section 6695, Rev. St. 1929, applicable to cities of the second class, except that the time for serving the required notice is limited to thirty days instead of sixty days. A similar statute, section 7493, Rev. St. 1929, applies to cities of one hundred thousand population or over, requiring the notice to be served within ninety days of the occurrence for which damage is claimed. This latter section, however, does not require the notice to be verified, as do the other similar statutes, and this distinction is important here.

These statutory provisions are all mandatory in character and provide that no action of the character mentioned "shall be maintained against the city * * * unless (or until) notice, in writing, shall first have been given to the mayor of the city," specifying what the notice shall contain; and the statutes applicable to cities of the first and second class require such notice to be "verified by affidavit." Giving heed to the mandatory character of these statutes, the courts have uniformly held that the giving of the notice of the kind and within the time specified (except in case of mental or physical disability, Randolph v. City of Springfield, 302 Mo. 33, 257 S. W. 449, 31 A. L. R. 612) is a condition precedent to maintaining the action. A failure to give the notice as required by the applicable statute is fatal to plaintiff's action. Randolph v. City of Springfield, 302 Mo. 33, 257 S. W. 449, 31 A. L. R. 612; Hackenyos v. City of St. Louis (Mo. Sup.) 203 S. W. 986, 987 (majority opinion), 203 S. W. 990 (dissenting opinion); Reese v. City of St. Louis, 280 Mo. 123, 127, 216 S. W. 315; Shuff v. Kansas City (Mo. App.) 257 S. W. 844; Lyons v. St. Joseph, 112 Mo. App. 681, 683, 87 S. W. 588; Canter v. St. Joseph, 126 Mo. App. 629, 634, 105 S. W. 1; Thomas v. St. Joseph (Mo. App.) 231 S. W. 63; Reno v. St. Joseph, 169 Mo. 642, 654, 70 S. W. 123.

While the case of Reese v. City of St. Louis, supra, has been overruled on the point of the notice being insufficient in stating the time of the injury to have been on or about a named date, in Wolf v. Kansas City, 296 Mo. 95, 108, 246 S. W. 236, and Boyd v. Kansas City, 291 Mo. 622, 237 S. W. 1001, yet these cases emphasize, rather than overrule, the holding that the giving of such notice as required by the statute is a condition precedent to plaintiff's right to recover. The holding that such notice should be liberally construed as to its contents in stating the time and place of the accident and the nature of the defect and injuries received (Reno v. St. Joseph, 169 Mo. 642, 655, 70 S. W. 123) does not apply to the essential facts that such notice must be given to the mayor of the city within the period specified by the statute and be in writing and verified by affidavit. "But where the defects are substantial or there is an entire omission to state the essential elements required, the fact that the city was not misled is immaterial and will not validate the notice, even where the statutory rule exists." 43 C. J. 1203.

In this case the plaintiff brought her action less than sixty days after the injury occurred, and summons was duly issued and, together with a certified copy of the petition, was served on the mayor of the city within such sixty-day period. It is now firmly established that the bringing of the suit, by filing the petition and having summons issued and the service of the summons by delivering a copy of the petition to the mayor of the city within the time required for service of such notice, is in effect, and takes the place of, the giving of notice in writing to the mayor within such time, where the petition so served contains the essentials of such a notice. Costello v. Kansas City, 280 Mo. 576, 584, 219 S. W. 386; Hunt v. St. Louis, 278 Mo. 213, 224, 211 S. W. 673, 676; Morrill v. Kansas City (Mo. App.) 179 S. W. 759; Wolf v. Kansas City, 296 Mo. 95, 108, 246 S. W. 236.

In the Hunt Case, supra, this court said: "While no notice, as such, was given to the mayor, the original petition in this case was filed and summons therein, with a true copy of the petition attached, actually served on the mayor of defendant city in less than 90 days after the injury occurred. The allegations of the petition so filed and served upon the mayor were such as to comply substantially with the requirements of the statute invoked and above cited. The Kansas City Court of Appeals in a well-considered opinion held that where an action is commenced, and summons, accompanied by a copy of the petition, is served on the mayor within 90 days after the injury complained of is received, no other or further notice is required. Morrill v. Kansas City [Mo. App.] 179 S. W 759. The correctness of this ruling impresses us, especially where, as here, the contents of the petition are such as to comply substantially with the written notice which the statute requires to be given. Jacobs v. St. Joseph, 127 Mo. App. 669, 106 S. W. 1072."

As we have said, the present suit was filed and summons issued and served on the mayor well within the sixty days after plaintiff's injury occasioned by her fall on the defective sidewalk. A certified copy of the petition was attached to the summons and delivered to the mayor. It is conceded, or, if not, we find, that the copy of the petition so delivered to the mayor is sufficient in every way to show the facts essential to a good notice under the statute, except that said petition was not "verified by affidavit" as required by the statute applicable to defendant city. We may concede that had the petition been verified by affidavit, then the fact that the suit was brought within the sixty-day period allowed for serving notice on the mayor, and a copy of the petition had been delivered by the sheriff to the mayor in making service of the summons within such time, would have been a sufficient compliance with the statute. In such case the petition serves as, or takes the place of, the notice, and when it is sufficient under the statute and is served in proper time, that is...