Connor v. Salt Lake City

• Decision Date: 11 November 1904
• Docket Number: 1573
• Citation: 78 P. 479,28 Utah 248
• Court: Utah Supreme Court
• Parties: MINNIE V. CONNOR, Respondent, v. SALT LAKE CITY, a Municipal Corporation, Appellant

78 P. 479

28 Utah 248

MINNIE V. CONNOR, Respondent, v. SALT LAKE CITY, a Municipal Corporation, Appellant

No. 1573

Supreme Court of Utah

November 11, 1904

Appeal from the Third District Court, Salt Lake County.--Hon. S.W Stewart, Judge.

Action to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant in permitting the obstruction of one of the city's streets. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

Charles C. Dey, Esq., City Attorney, Wm. H. Bramel, Esq., and D. O Willey, Esq., Assistant City Attorneys, and J. H. Bailey Esq., for appellant.

Defendant's challenge to the jury should have been sustained.

The jury offered in this particular case was not drawn for the department of the court in which it sat. On the contrary, it was drawn for the district court generally without reference to the particular departments presided over by different judges, and without reference to the order of any particular judge. At the time of the trial sixteen jurors of the venire were not available in this case. There had been a mistrial of this action before the same judge, during the same term, and eight jurors from the venire having heard the evidence had thereby become disqualified and were not available. At the time the case came on for trial another jury of eight men from the same venire or panel were serving in the department of Judge Morse, and were not available in this case. These facts are conceded. A seasonable challenge to the panel of the jury was made.

The statute provides that at least fifteen days prior to the beginning of any term of the court, the clerk of the court shall draw such a number of names from the jury box, to serve as jurors, as the judge shall direct. R. S. 1898, secs 1310-1311.

The statute further provides:

In districts having more than one judge, each judge therein shall have the power to order drawn such number of grand and petit jurors as may be necessary to serve in the court presided over by such judge. R. S. 1898, sec. 1313.

A challenge to the panel can be founded only on a material departure from the forms prescribed in respect to the drawing and return of the jury, or on the intentional omission of the proper officer to summon one or more of the jurors drawn. R. S. 1898, sec. 3140.

In the case the appellant contends that there was a confessedly material departure from the forms prescribed in respect to the drawing and return of the jury--so material in fact that it resulted in a trial jury selected from an irregular, imperfect and mutilated panel being thrust upon the defendant.

Had the jury been drawn for the particular department in which this trial occured, the eight jurors in Judge Morse's Court would have been present at this trial. The intentional omission of the sheriff to summon one or more of the jurors drawn invalidates the panel. What is to be said in favor of a departure from the prescribed form that results in eight jurors being taken from the panel?

Each department of the district court is, so far as drawing jurors is concerned, a separate, independent court. One department cannot legally draw jurors for another department, send jurors to another department or call them in from another department. People v. Wong Bin, 139 Cal. 60; R. S. 1898, sec. 1313.

The statute gives the judge of a department power to order a jury for his particular department, but it does not give him the authority to order a jury for all departments or to deplete his panel by sending portions of it to other departments.

The manner in which a jury is to be drawn in a court of more than one department is prescribed by statute, but this jury was drawn "without reference" to any particular department of the order of any particular judge.

A jury is a component part of a court, and unless such jury is legally constituted it vitiates the entire proceeding before the court. Moore v. Guano Co., 130 N.C. 229, 41 S.E. 293. Thurston v. State, 18 Tex. App. 26; U.S. v. Colt., 25 F. Cases, No. 14839; Brazier v. State, 44 Ala. 387; Nealson v. State, 39 Ill.App. 481; Gott v. Brigham, 45 Mich. 424.

The court erred in receiving in evidence the notice of claim presented to the city council.

The statutes provide for the presentation of claims "describing the time, place, cause and extent of damage or injury," R. S. 1898, sec. 312; and also enacts that no action shall be maintained unless it appears that the claim was presented as aforesaid. R. S. 1898, section 313.

The objection to the notice in question is that it is insufficient in failing to describe the "place" and also in failing to designate the "time."

In respect to place the notice says, "while walking on the sidewalk at and along First West street, between Seventh and Eighth South streets in the city."

This gives us both sides of the street; in other words, eighty rods or a quarter of a mile.

This obstruction it will be observed was not one caused by any act of the city. It was a transient movable obstruction--a gate that had been left partially opened and had fallen onto the walk. It is like any temporary obstruction, such as a box, a wheelbarrow--snow or ice or the like. It is not a permanent object, such as a stump, or a broken board or rock imbedded in the walk--reference to which would aid in finding the place sought to be described. Here not even the kind of fence is mentioned. The place was one that could be readily described by reference to Mr. Schmeirer's house and iron fence right there.

The husband of plaintiff on the next day with others made measurements from Mr. Schmeirer's iron post, also from the corner of Eighth South and Second West streets, also from the electric light pole at intersection of said streets.

Appellants husband had the notice prepared. He knew the kind of fence, the exact place and location. He had it so prepared that it could not be told what kind of fence it was, or on which side of the street it was, giving eighty rods for the city officers to find and locate the place if they could.

In construing our statute it is to be borne in mind that it is not a statute limiting a common-law right. Municipal corporations at common law are not liable for damages caused by obstructed or defective streets. The liability is purely statutory. The statute requirements must be substantially complied with. Goddard v. City of Lincoln, 96 N.W. 273; Arnold v. San Jose, 81 Cal. 618; Winbigler v. Los Angles, 45 Cal. 36; Stilling v. The Town of Thorp, 54 Wis. 528; Mower v. Leicester, 9 Mass. 247; Reining v. Buffalo, 102 N.Y. 308; Corry v. Buffalo, 135 N.Y. 366; Van Loan v. Village of Lake Mills, 60 N.W. 710.

The object of requiring such notice is that the city authorities may ascertain the facts concerning the defects and the personal injury occasioned thereby, before they are obscured or lost by lapse of time.

In Benson v. City, 101 Wis. 312, 317, 77 N.W. 161, the court says:

"To be legally sufficient, the notice must contain a sufficiently definite description of the place of the accident to enable the interested parties to identify it from the notice itself."

In Currier v. Concord, (N. H.), 44 A. 386, the notice as to place "while traveling on foot along the sidewalk on the west side of the highway leading from Concord Main street to the village of Penacook, at a point near the entrance of the cemetery. and near the limits of said city of Concord," held insufficient.

In Lee v. Village of Greenwich, 63 N.Y.S. 160, the notice described the place as Barber avenue, this avenue was about 100 rods long. Held not sufficiently definite.

In Butts v. Stowe, 53 Vt. 600, a notice described the place where the injury was received as "at a place a few rods south of T. A. Straw's starch factory, and between that and the bend in the road at a pile of rocks."

The distance was eleven rods, and the notice was held not to be as the law required. Law v. Fairfield, 46 Vt. 425; Rogers v. Shirley, 74 Me. 144; Larkin v. Boston, 128 Mass. 521; Donnelly v. Fall River, 130 Mas. 115; Babcock v. Guilford, 47 Vt. 519; Sowle v. Tomah, 81 Wis. 349.

The requirement of a notice is mandatory. It is a condition precedent to bringing an action. The requirement of stating the "place" is to be complied with in a reasonably sufficient manner so that a person with the notice can go and find the defect or obstruction complained of. To give a range of a quarter of a mile in the case of a movable obstruction does not render it possible to locate the place nor serve any real beneficial purpose. Might as well say in the city or in a certain ward or election precinct.

In Trost v. Castleton (N. D.), 79 N.W. 1071, one hundred feet from the place of the injury was held fatal. Authorities are reviewed in this case.

Although not the case here, it is immaterial that some of the city officers were at the place of the injury immediately after the accident, and knew precisely where it occurred. Trost v. Castleton, 79 N.W. 1071; Sowle v. Tomah, 81 Wis. 350, 51 N.W. 571.

Parol evidence is not admissible to supply a legal requirement of the written notice or to aid it in any way. Underhill v. Washington, 46 Vt. 767; Trost v. Castleton, 79 N.W. 1071.

In White v. Snow, 54 Vt. 510, the court say:

"The notice should point directly and plainly to the place of injury, as is reasonably practicable, having regard to its character and surroundings."

This rule was approved by the court in Wilber v. Greenfield, 74 Wis. 231, as being a "sensible, practical construction of the requirement."

Messrs. Powers & Straup for respondent.

However the matter of sufficiency of the notice in describing the place of accident, is not to be determined alone from mere cases. In all the...