Dohring v. Kansas City
| Decision Date | 02 April 1934 |
| Citation | 71 S.W.2d 170,228 Mo.App. 519 |
| Parties | ARLIE G. DOHRING, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Jackson County.--Hon. Darius A. Brown Judge.
REVERSED.
Judgment reversed.
Atwood Wickersham & Chilcott for respondent.
George Kingsley, City Counselor, and John J. Cosgrove, Assistant City Counselor, for appellant, City.
This is an action for damages, suffered by plaintiff as the result of the loss of services, and expenses of his wife, who was injured on February 4, 1930, by falling upon an icy sidewalk in Kansas City. There was a verdict and judgment in favor of plaintiff in the sum of $ 2000, and defendant has appealed.
The facts show that no written notice of her injury was given to the city by the wife, save that furnished by the filing of a suit by her on February 28, 1930, within ninety days after she fell, and the service of a copy of the petition therein upon the city. Plaintiff herein, at no time, gave any notice of any kind to the city but in order to show compliance, on his part, with Section 7493, Revised Statutes 1929, requiring that notice, under certain circumstances, be given the city, he introduced, over the objection of the defendant, the petition in his wife's case. It is undisputed that this petition contained all of the essentials of the notice required by the statute, so far as the claim of the wife was concerned. The statute in question reads as follows:
"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 thorough-fare 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 damages 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. (Italics ours.)
It is claimed by the defendant that its instruction in the nature of a demurrer to the evidence should have been given for the reason that no notice, such as is required by the statute, or, in fact, any kind, was given by plaintiff. In answer to this contention plaintiff insists that if it were necessary to give the city notice, in order for plaintiff to maintain his action, the notice given by his wife was sufficient. We are unable to agree with plaintiff's contention. The rule regarding the requirements of this statute is well stated in Reid v. Kansas City, 195 Mo.App. 457, 460, 461, 192 S.W. 1047, as follows:
In the case at bar the notice furnished by the wife in her petition against the city did not intimate that plaintiff herein would claim damages as a result of the injuries to his wife and it, therefore, did not comply, as far as this plaintiff is concerned, with requirement seven laid down in the Reid case, even had it, can it be said to have met the other requirements set forth therein? The petition in the wife's case not only failed in this respect but it did not even intimate that she was a married woman.
In the case of Hubbard v. Fayette, 70 Me. 121, the husband gave the notice and not the wife, who sued. The court said, l. c. 124:
The case of Seliger v. City of New York, 88 N.Y.S. 1003, was one by a parent for damages sustained by him in consequence of an accident to his infant son. A claim was filed by or on behalf of the infant son for damages suffered by him. None was filed by the father. The court said, l. c. 1004: [See, also, City of Birmingham v. Chestnutt, 161 Ala. 253, 256, 49 So. 813; McKeague v. City of Green Bay (Wis.), 82 N.W. 708; Sargent v. Gilford, 66 N.H. 543, 27 A. 306.] That one of the purposes of the notice is to give the city an opportunity to adjust the claim without litigation is well settled in this State. [See Ogle v. Kansas City, 242 S.W. 115.] How is the city to adjust a claim when none has been made?
We have examined the cases cited by plaintiff and find them not in point. In the case of Wright v. City of Omaha (Neb.), 110 N.W. 754, the court said, l. c. 755: That the statute requiring the giving of notice "nowhere required that the notice shall state that the party giving the same will claim damages." As already pointed out our statute specifically makes such a requirement. In the case of Peck v. Fair Haven & W. R. Co. (Conn.), 58 A. 757, cited by the plaintiff, the court said, l. c. 758:
"The section does not provide that the notice shall contain a statement of the character or amount of the claim of the injured person for damages, nor that a claim for damages is, or is intended to be made; nor is it expressly provided that the notice must be given by the injured person."
It will thus be seen that the Connecticut statute is worded differently than ours. In Davis v. City of Seattle (Wash.), 79 P. 784, the wife was injured but the husband gave no notice, it having been given by her, alone. She afterwards brought suit and, later, the petition was amended to include her husband as a party plaintiff. Under the law of Washington damages resulting from an injury to the wife are community property and the husband is the party authorized to prosecute the action. The court held that the wife could present a claim on behalf of the community for damages for personal injuries sustained by herself. In Missouri the wife's and the husband's suit is separate and distinct, they each sue in their own right and there is no privity, even, between them. [Womach v. St. Joseph, 201 Mo. 467, 100 S.W. 443.] We are unable to see any similarity between the Washington case and the one at bar.
However, it is claimed that our statute makes a distinction between an injury done to the person directly receiving it (that is, injury to absolute rights) and one to relative rights, such as those resulting in damages to a husband as the consequence of a personal injury to his wife and, therefore, the statute required no notice be given by anyone in order for the husband to prosecute this suit.
The word "injury" has more than one meaning. Technically, "it means a wrongful invasion of a legal right," "an actionable wrong," "and is not concerned with the hurt or damage resulting from such invasion." [32 C. J., p. 516; see, also, Myers v. City of Independence, 189 S.W. 816, 823.]
[32 C. J., p. 516; see, also, Johnson v. Railroad Co., 140 N.C. 574.]
We think there is no question but that the word "injury" appearing in the statute now before us was used by the Legislature, not in a technical sense but in the usual meaning, that is, in the sense of "hurt" or "damage" and includes damages or injuries resulting to relative rights as well as direct injuries or injuries to absolute rights. [See Sharkey v. Skilton, 83 Conn. 503, 510, 77 A. 950.]
From a study of the statute we are impressed with the fact that it has been carefully worded though, perhaps, it is not technically perfect from that standpoint. It speaks of "injuries" and "damages." It does not use the words "personal injuries" or "injuries to the person." Where it first speaks of "injuries" it does not say "direct injuries" or "persons receiving injuries," but says "no action shall be maintained . . . on account of any injuries growing out of any defect in the condition of any bridge," etc. The words "on account of" are equivalent to the words "as a result of" or "having as a...
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