Fuller v. State Highway Commission
| Decision Date | 08 December 1934 |
| Docket Number | 31837. |
| Parties | FULLER v. STATE HIGHWAY COMMISSION. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Two-year statute of limitations on state's liability to one injured on account of defect in highway begins to run at time damages are sustained and not from time of filing of notice which must be filed within 90 days after injury (Rev. St Supp. 1933, 68--419).
Where damages are sustained due to an alleged defect in a state highway and notice is served under the provisions of R.S.Supp. 1933, 68--419, before the expiration of ninety days, the two-year statute of limitations provided for in that section begins to run at the time the damages are sustained and not from the time of filing of the notice.
Appeal from District Court, Shawnee County, Division No. 1; George A. Kline, Judge.
Action by Ellen N. Fuller against the State Highway Commission. From a judgment overruling a demurrer to the petition, defendant appeals.
Judgment reversed, with directions.
Wint Smith, of Kansas City, and Edward F. Arn, of Topeka, for appellant.
Barton E. Griffith, James E. Smith, Earl H. Hatcher, Frank H McFarland, and Clayton M. Davis, all of Topeka, for appellee.
This is an action against the state highway commission to recover damages on account of a defective highway. Judgment was for plaintiff overruling a demurrer to the petition. Defendant appeals.
The injury occurred August 30, 1931. Ninety-day notice was served November 28, 1931. Petition was filed November 23, 1933. The action was brought under the provisions of R.S.Supp. 1933 68--419. That section is one providing for liability of the state to one injured on account of a defect in a state highway. The part of the statute in which we are interested is as follows: "Provided, That no such action shall be maintained unless within ninety days after the sustaining of such damage, written notice, stating the date, when, and place where such damage was sustained, the name and correct post-office address of the person sustaining such damage, and the character of the damage sustained, shall be served upon the director of highways, either in person or by registered mail at his office in Topeka, Shawnee county, Kansas: Provided further, That the action must be commenced within two years."
It will be noted that two years, two months, and twenty-one days elapsed between the injury and the filing of the petition. Not that much time had elapsed, however, since the filing of the ninety-day notice. Hence, if the running of the statute began when the notice was filed, the demurrer was correctly overruled, and, if it started when the injury occurred, the demurrer should have been sustained. Both sides agree that the statute started when the cause of action accrued. Plaintiff argues that, since the action cannot be brought unless the notice is served, the giving of notice constitutes a condition precedent to institution of the action, and this act must be performed before right to bring the action comes into being. Defendant, on the other hand, contends that, while notice is a condition precedent to filing of the action, it is not a condition precedent to accrual of the cause of action, and is simply a preliminary step referring to the remedy.
It will be noted the provision of the statute is the action must be begun in two years. This provision modifies the portion of the statute which provides for the liability. The action could be begun the next day after the injury occurred, provided the notice is served first. The notice does not have any relationship to the liability. It is simply something that must be done preliminary to filing suit.
This court has considered cases where the question was, When did the cause of action accrue?
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Millman v. County of Butler
...prior to commencement of the suit." 263 Ind. at 193-94, 325 N.E.2d at 843. The Kansas Supreme Court, in Fuller v. State Highway Comm., 140 Kan. 558, 559, 561, 38 P.2d 99, 99-100 (1934), held that the provision for written notice pursuant to the Kansas governmental tort claims act did "not h......
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Welch v. Kansas City
...has been filed with the city. The issue was squarely raised, and plaintiffs' argument clearly refuted, in Fuller v. State Highway Comm., 140 Kan. 558, 38 P.2d 99, 95 A.L.R. 1186. In that case the plaintiff sought to recover damages sustained by reason of a road defect, under a statute impos......
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Moreno v. City of El Paso
...of Notice or Presentation of Claim Against Governmental Body, 3 A.L.R.2d 711, 712-16 (1949), discussing e.g., Fuller v. State Highway Commission, 140 Kan. 558, 38 P.2d 99 (1934)(where statute provided that action for injury could not be maintained unless a written notice was given within ni......
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Aaron v. City of Tipton
...remedy of instituting and maintaining an action for the collection of the damages. In Fuller v. State Highway Commission, 1934, 140 Kan. 558, 38 P.2d 99, 95 A.L.R. 1186, the court, in determining when the statute of limitations began to run, held that the notice required by statute which pr......