Daniel v. City of Richmond, 4694

• Decision Date: 02 December 1957
• Docket Number: No. 4694,4694
• Citation: 199 Va. 490,100 S.E.2d 763
• Parties: LONEY L. DANIEL v. CITY OF RICHMOND. Record
• Court: Virginia Supreme Court

Page 763

100 S.E.2d 763

199 Va. 490

LONEY L. DANIEL v. CITY OF RICHMOND.

Record No. 4694.

Supreme Court of Appeals of Virginia

December 2, 1957.

G. Kenneth Miller (John G. May, Jr.; John W. Fussell, on brief), for the plaintiff in error.

J. Elliott Drinard, City Attorney, for the defendant in error.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

Loney L. Daniel instituted this action against the city of Richmond and Virginia Electric and Power Company, to recover compensation for personal injuries sustained when his hand came in contact with a high tension electric wire, alleged to have been negligently erected and maintained by defendants, and each of them, in dangerous proximity to an exit or fire escape of a building located on Williamsburg Avenue, Richmond, Virginia, where he worked.

It was alleged in the motion for judgment that notice of the injury suffered by plaintiff 'was filed with said city as required by law.' The city in a special plea, entitled 'Plea in Abatement,' denied this allegation and averred that plaintiff did not give the city, within 60 days from the date of the accident, written notice of the nature of his claim and of the time and place his injury was received as required by Code, § 8-653, and § 10.04(b) of the charter of the city of Richmond. The issue thus raised was, on stipulation of facts, submitted to the trial judge who sustained the plea and dismissed the action as to the city, and continued the case as to Virginia Electric and Power Company. From the judgment dismissing the city as a party defendant, plaintiff obtained this writ of error.

The applicable provisions of Code, § 8-653 and § 10.04(b) of the city's charter are substantially the same. The pertinent provisions of the statute are:

'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 that when 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 section shall be valid, notwithstanding any contrary charter provision of any city or town.'

The facts to which the parties agreed are: On May 17, 1954, while in the course and scope of his employment by the Fibre Board Container Corporation, plaintiff received serious and permanent injuries from contact with a wire transmitting approximately 2500 volts of electric current to the city's gas plant. He was taken immediately to the hospital of the Medical College of Virginia where he remained 72 days, during which time he was totally incapacitated, suffered severe pain and underwent four operations. While in the hospital plaintiff accepted, from time to time, compensation from his employer's insurance carrier.

The day after the accident plaintiff's employer, by telephone, notified the Department of Public Works of the city of the incident. Soon thereafter the city investigated the place of the accident and changed the location of the wire on the poles. On July 6, 1954, the city refused a verbal request of an agent of the insurance carrier to give him information as to the ownership of the wire and poles.

No further steps were taken in the matter by, or on behalf of, plaintiff until July 21, 1954, five days after the expiration of the 60 day period, when an agent of the insurance carrier addressed a letter to the Department of Public Utilities of the city stating the time and place of the accident, and asserting a lien under Code, § 65-38 'against any payments you may make' to plaintiff. A copy of this letter was not delivered to the City Attorney until July 26, 1954, ten days after the expiration of the 60 day period. In our view of the case, it is unnecessary to determine whether the letter, even if delivered in time, was a sufficient compliance with the statute.

Plaintiff admits that he did not give the city written notice of his claim within the time required by the statute and the city's charter, but contends that because of his total incapacity and the fact that within the 60 day period the city had actual knowledge of the time and place of the accident, he should not be barred from maintaining his action against the city.

There is a conflict in the authorities as to whether any circumstances not specifically stated in a statute or municipal charter, such as mental or physical disability or infancy, are sufficient to excuse the failure to give a municipality notice of a tort claim within the time required by such statute or municipal charter. These conflicting views are discussed at length in an annotation to Brown v. Board of Trustees of Hamptonburg, 34 A.L.R.2d 720. See also, 38 Am. Jur., ...