David v. City of St. Louis

• Citation: 96 S.W.2d 353,339 Mo. 241
• Parties: Helena B. David, Appellant, v. City of St. Louis, a Municipal Corporation, and Lillie Ernst
• Decision Date: 20 August 1936
• Court: United States State Supreme Court of Missouri

96 S.W.2d 353

339 Mo. 241

Helena B. David, Appellant, v. City of St. Louis, a Municipal Corporation, and Lillie Ernst

Supreme Court of Missouri

August 20, 1936

Appeal from Circuit Court of City of St. Louis; Hon. Frank C O'Malley, Judge.

Reversed and remanded (with directions to reinstate the case against the city only).

Benjamin B. Smith, J. Edward Gragg and Robert L. Aronson for appellant.

(1) Where a defectively constructed sidewalk or a sidewalk allowed to become and remain defective combines and concurs with a natural cause, such as ice or snow, to create a hazard and danger for pedestrians using the sidewalk, and when an injury results from such hazard and danger, the city is liable. Rice v. Kansas City, 16 S.W.2d 659; Lueking v. Sedalia, 180 Mo.App. 208, 167 S.W. 1153; Gist v. St. Joseph, 220 S.W. 722; Reedy v. St Louis Brewing Assn., 161 Mo. 523, 61 S.W. 859; Harding v. St. Joseph, 7 S.W.2d 707; Suttmoeller v. St. Louis, 230 S.W. 67; Reno v. St. Joseph, 169 Mo. 640, 70 S.W. 123; Wolf v. Kansas City, 246 S.W. 236; Bloom v. Toledo, 25 Ohio C. C. 235; Kauffman v. Harrisburg, 204 Pa. 26, 53 A. 521; Dracass v. Chicago, 193 Ill.App. 75; Gillrie v Lockport, 122 N.Y. 403, 25 N.E. 357; Hill v. Fond du Lac, 56 Wis. 242, 14 N.W. 25. (2) The statute should be liberally construed, as to the sufficiency of the contents of the notice; and under such construction the notice in the case at bar is a substantial compliance with the statute. Snickles v. St. Joseph, 139 Mo.App. 187, 122 S.W. 1122; Reno v. St. Joseph, 169 Mo. 640, 70 S.W. 122; Ogle v. Kansas City, 242 S.W. 115; Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; Manning v. Kansas City, 222 S.W. 927; Johnston v. Kansas City, 243 S.W. 265; Powers v. Kansas City, 18 S.W.2d 545; Kling v. Kansas City, 61 S.W.2d 411; Peterson v. Kansas City, 23 S.W.2d 1045. (3) Defendant city may be chargeable with having waived any defect in plaintiff's notice, with respect to her injury. Johnson v. Kansas City, 272 S.W. 703; Beane v. St. Joseph, 211 Mo.App. 200, 240 S.W. 840.

Oliver J. Miller and Lashly, Lashly & Miller for Lillie Ernst.

This court will not reverse the ruling and judgment of the trial court on the ground that the trial court erred in giving an instruction where, as here, appellant failed to show a right of recovery. Fritz v. St. Louis Ry. Co., 243 Mo. 62, 148 S.W. 74; Schuepbach v. Laclede Gas Light Co., 232 Mo. 603, 135 S.W. 29; Ott v. Moore, 20 S.W.2d 166; Boley v. Bankers' & Shippers' Ins. Co., 23 S.W.2d 1095; Smith v. Wells, 31 S.W.2d 1014; Unterlachner v. Wells, 278 S.W. 79.

Edgar H. Wayman, Oliver Senti and Jerome Simon for the City of St. Louis.

(1) The statutory notice served upon the city is fatally defective in that it does not state the circumstances of her injuries. Sec. 7493, R. S. 1929; Lyons v. St. Joseph, 112 Mo.App. 681. (2) The statutory notice served upon the city is fatally defective in that it does not state the character of plaintiff's injuries. Sec. 7493, R. S. 1929; Jacobs v. St. Joseph, 127 Mo.App. 669; Cole v. St. Joseph, 50 S.W.2d 623. (3) The authorities upon which the plaintiff relies do not support the contention that the statute should be so liberally construed that a notice, which does not state the character and circumstances of the injury, should be deemed a sufficient compliance with its requirements. Lyons v. St. Joseph, 112 Mo.App. 681; Jacobs v. St. Joseph, 127 Mo.App. 669; Cole v. St. Joseph, 50 S.W.2d 623. (4) Where the statutory notice served upon a city is fatally defective, it would be useless to reverse a judgment in favor of the city because it had not affirmatively pleaded the insufficiency of the notice, for the reason that the defendant, before the case was again tried below, could amend its answer, setting up that defense. Cole v. St. Joseph, 50 S.W.2d 623.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant, plaintiff below, filed suit against respondents to recover $ 25,000 in damages for personal injuries alleged to have been sustained as the result of a fall upon a public sidewalk, at 6058 Kingsbury Avenue, in the city of St. Louis, Missouri. At the close of plaintiff's case the trial court gave, and read to the jury, an instruction, on behalf of each defendant, directing a verdict in their favor. Plaintiff thereupon took an involuntary nonsuit as to both defendants with leave to file a motion to have the same set aside. Plaintiff's motion to have the nonsuit set aside was overruled and she appealed.

Plaintiff's evidence disclosed that while she was walking along the sidewalk in question, on the evening of January 13, 1931, she fell, due to a defect in the sidewalk. A light snow had fallen, obstructing the defect from view. The evidence was sufficient to make a case for the jury. The only point briefed here is on the question of the sufficiency of the notice, which plaintiff, served upon the city, as required by Section 7493, Revised Statutes 1929 (8 Mo. Stat. Ann., p. 5960). The notice, which is the bone of contention on this appeal, read as follows:

"'Honorable Victor J. Miller, Mayor of the City of St. Louis, State of Missouri. Dear Sir: You are hereby notified that the undersigned, Helen B. David, of the City of St. Louis, Missouri, was injured on the 13th day of January, 1931, on the sidewalk situate at 6058 Kingsbury, when the said Miss Helen B. David was walking along the sidewalk in front of the above premises, when she was caused to fall due to the defective condition thereof. Kindly be further notified that the said Miss Helen B. David will claim damages from the City of St. Louis for the injuries sustained aforesaid as a result of the negligence and carelessness of said City of St. Louis, its agents, servants and employees.' Signed, 'Helena B. David;' and notarized as follows: 'State of Missouri, City of St. Louis, SS. On the 10th day of March, 1931, before me personally appeared Miss Helen B. David, who after being duly sworn upon her oath says that the facts stated in the above notice are true, according to the best of her knowledge and belief.' Again signed by Helena B. David. 'Subscribed and sworn to before me the day and year above written. My commission expires August 26, 1931. Harvey Eder, Notary Public.'

"And in ink at the bottom of this notice reads as follows: 'Received by Victor J. Miller, 3/23/'31, at 2:30 P. M.'"

This necessarily draws in question the meaning and purpose of Section 7493, supra. It reads:

"No action shall be maintained against any city of this state which now has or may hereafter attain a population of one hundred thousand inhabitants, on account of any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city, until notice shall first have been given in writing to the mayor of said city, within ninety 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."

It is urged that the notice in the case was defective because it did not state the circumstances and character of plaintiff's injuries. In the case of Cole v. City of St. Joseph, 50 S.W.2d 623, l. c. 625 (5), this court in considering a similar statute said:

"The prime object is to give the city prompt notice of claimed injuries due to negligent defects in the streets, sidewalks, etc., in order that the city may make investigation of the facts while existing conditions remain unchanged and witnesses knowing the facts are available and to be found."

We cannot improve upon that statement. The whole purpose and object of the statute was concisely stated. Respondent city cited the Cole case, supra, and also Lyons v. St. Joseph, 112 Mo.App. 681, 87 S.W. 588, and Jacobs v. St. Joseph, 127 Mo.App. 669, 106 S.W. 1072, as authority that the notice in the instant case was insufficient. In the Cole case the notice was held fatally defective because it was not verified, as the statute there under consideration required. That case is, therefore, not in point. In the Lyons case the notice was held defective because it failed to state how the injury was received. The notice simply recited:

"Said injuries were sustained by me while walking upon the sidewalk of said city at the intersection of Dewey Avenue and Louis Street."

The material defect in such a notice is apparent. It did not notify the city whether the claimant was run over by the fire department in answering a call, whether she was struck by a falling object, or whether she fell, due to a defective sidewalk. In other words the notice was of no value to the city, if it desired to investigate the cause of the claimant's injuries. We have no fault to find with the Lyons case on that point. The Jacobs case, however, supports the contention made that the notice must particularize the injuries sustained. The notice read:

"Julia Jacobs, of lawful age, being first sworn, states that on the 3rd day of October, 1903, in the city of St. Joseph, Mo., on Twentieth Street, between Sacramento Street and Mitchell Avenue, and while walking along the sidewalk in front of the residence and property of Charles Lang, at said time and place, she fell and was injured on account of a loose and broken board in said sidewalk, on account of which she sustained great injuries. Affiant further states that she will claim damages from the city of St. Joseph, Mo., on account of same."

The court in that case tersely said:

"The notice was insufficient, in that it failed to state, in any way, the character of plaintiff's injuries."

We are of the opinion that the notice in the Jacobs case was sufficient. The...