Hackenyos v. City of St. Louis

Decision Date17 May 1918
Docket NumberNo. 19068.,19068.
PartiesHACKENYOS v. CITY OF ST. LOUIS.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Nettie Hackenyos against the City of St. Louis. From judgment of nonsuit, plaintiff's motion to set aside the nonsuit and grant her new trial having been overruled, plaintiff appeals. Affirmed.

On November 20, 1914, plaintiff filed, in the circuit court of the city of St. Louis, Mo., her petition claiming damages on account of an injury alleged to have been sustained by her while walking along one of defendant's streets in said city. On March 1, 1915, she filed an amended petition, in which she alleges, that while walking along Harney avenue, a public street of defendant's, in the city aforesaid, midway between Davison street and Beacon street, in said city, she was injured by being precipitated and falling into a hole or depression on the west side of Harney avenue, about 2% feet deep and about 3 feet wide, whereby her right side and abdomen were bruised, and she was internally injured. The petition avers that within 90 days after the date of plaintiff's injury she gave notice in writing to the mayor of said city of the occurrence for which damages were claimed, stating the place where, the time when, such injury was received by plaintiff, the character and circumstances of the injuries, and stating that she would claim damages therefor against said city. Her damages were laid at $15,000. The answer consisted of a general denial, and contained a plea of contributory negligence. The reply was a general denial.

The case was reached for trial before a jury in above court on April 27, 1915. The notice above mentioned was offered in evidence. Among other things, it stated that "on or about the 1st day of September, 1913," plaintiff was injured as aforesaid. The latter was then sworn as a witness, and testified that she was injured "on the 2d day of September, 1913." Thereupon defendant objected to any further evidence in this cause, for the reason that the notice offered in evidence placed the injury as having occurred "on or about the 1st clay of September, 1913," and for that reason there was a fatal variance between the notice and the date of the accident; that the notice was insufficient, and for that reason plaintiff could not recover. The court sustained defendant's objection aforesaid, and refused to allow plaintiff to proceed further with her testimony. Plaintiff saved her exceptions to the ruling of the court, and offered to introduce testimony tending to prove the allegations of her petition. This offer was refused, an exception taken to the ruling of the court, and plaintiff took an involuntary nonsuit, with leave to move to set the same aside. On April 30, 1915, plaintiff filed her motion to set aside said nonsuit and to grant her a new trial, which was overruled, and the cause duly appealed by her to this court.

Charles E. Morrow and Charles Fensky, both of St. Louis, for appellant. Charles Danes and Everett Paul Griffin, both of St. Louis, for respondent.

BAILEY, C. (after stating the facts as above).

Section 1 of the Laws of Missouri (Acts 1913, p. 545) 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 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."

The notice described in petition was served upon the mayor of defendant on September 10, 1913, and reads as follows:

"To Hon. Henry W. Kiel, Mayor of the City of St. Louis: Take notice that on or about the 1st day of September, 1913, about 11 a. m., the undersigned, Mrs. Nettie Hackenyos, while walking along and upon Harney street between Beacon and Davison streets, in the city of St. Louis, at which point there was a deep hole in the street, around which there were high weeds and grass obscuring the same, thus making the hole in said Harney street dangerous; that while walking along said street she fell into said hole, and was severely injured in and upon her body, spraining her hips and causing her to receive a severe shock.

"I claim and will claim damages against the city, on account of said injuries so received, in the sum of seven thousand five hundred dollars, and intend to and will institute suit for said amount. Nettie Hackenyos.

"State of Missouri, City of St. Louis—ss.

"Mrs. Nettie Hackenyos, being duly sworn,. on her oath says that the statements, matters facts, and things set forth in the above notice are true. Nettie Hackenyos.

"Subscribed and sworn to before me this 8th day of September, 1913. My commission expires November 15, 1916.

                             "Charles Fensky, Notary Public."
                

And on the back thereof:

                       "St. Louis, Mo., September 10, 1913
                

"Service of copy Of the within notice accepted and acknowledged this 10th day of September, 1913. Henry W. Kiel, Mayor,

                          "By T. H. Rogers. Secretary."
                

I. Was the trial court justified in nonsuiting plaintiff upon the ground that the injury occurred on September 2, 1913, when the foregoing notice avers that the injury occurred "on or about" the 1st day of September, 1913?

The right of the General Assembly to pass the act of 1913, heretofore set out, is not questioned by appellant. Section 8863, R. S. 1909, which required the notice to be given by the injured party within 60 days of the date of injury, is, in other respects, substantially the same as the act of 1913, supra, except as to verification. From the extensive legislation adopted by various states of our Union in respect to this subject it is manifest that the different lawmaking powers realized that large cities, and especially those whose boundaries extended over sparsely settled territory, were often liable to be imposed upon, by the assertion of fictitious and fraudulent claims, presented for the first time after a long delay, at a time when the environments surrounding the place of injury have changed, and when the witnesses to the transaction have disappeared, so their testimony could not be obtained. The lawmakers realized that it imposed no hardship upon the injured person to require him or her to serve upon the mayor of the city, within 60 or 90 days of the date of the injury, as the case may be, a notice in writing, stating the place where, the time when, such injury was received, the character and circumstances of the injury, and a statement that the person so injured will claim damages from the city. With the information furnished the city, contemplated in the above notice, and especially with the correct date given therein, the municipality will be afforded an opportunity to check up and verify the movements of the injured party on said day, and to prove, if it can, that he or she was not in that part of the city and sustained no injury on the date mentioned. In order to make this notice effective and of practical value to the city, the language used in section 8863, supra, as well as in the act of 1913, heretofore set out, should be held to be mandatory, and especially as to the true time of the injury.

In the case at bar the accident is alleged to have taken place on September 2, 1913. The notice was sworn to by plaintiff, before her counsel, Charles Fensky, on September 8, 1913. It stated the date of the injury as occurring "on or about the 1st day of September, 1913, about 11 a. m." It is clear from the authorities that the above words "on or about" are indefinite, uncertain, and imparted no notice to defendant that the accident occurred on the 2d of September, as the language used would have been equally as applicable to any other day, up to the 10th of said month, or even later. Kerr v. Blair, 47 Tex. Civ. App. 406, 105 S. W. 548-551; Blair v. Riddle, 3 Ala. App. 292, 57 South. 382; Morgan v. State, 51 Fla. 76, 40 South. 828-829, 7 Ann. Cas. 773; Hope v. Scranton & Lehigh Coal Co., 120 App. Div. 595, 105 N. Y. Supp. 372-378; Brown & Bigelow v. Bard, 64 Misc. Rep. 249, 118 N. Y. Supp. loc. cit. 375; Blackshear Mfg. Co. v. Stone, 8 Ga. App. 661, 70 S. E. 29-30; Paine v. Com. of State Land Office, 66 Mich. 245, 33 N. W. 491; Godfrey Lumber Co. v. Kline, 167 Mich. 629, 133 N. W. 528-529; Santa Monica Lumber & Mill Co. v. Hege (Cal.) 48 Pac. 69-71; Cohn v. Wright, 89 Cal. 86, 26 Pac. 643; Lee v. Village of Greenwich, 48 App. Div. 391-394, 63 N. Y. Supp. 160-161; Wolf Co. v. Penna. R. R., 29 Pa. Super. Ct. 439; 6 Words and Phrases, pp. 4966-7.

It would serve no good purpose to quote from the foregoing authorities, as they all, with one accord, construe the words "on or about," in cases of this character, as conveying an indefinite and uncertain meaning.

On page 6 of appellant's brief it is said:

"While the act is mandatory, it is to be construed liberally as to the contents of the notice."

This may be true, in some instances, in passing upon matters contained in the notice, I aside from the date of injury mentioned therein, yet, unless the act is construed as mandatory, in respect to time of injury called for in said notice, it would leave the city to grope in the dark, and without information as to the exact date which the injured party intended to rely on at the trial. Even if the notice had read that plaintiff was injured on September 1, 1913, she should not be permitted at the trial to recover when she was injured on the 2d, or some other day of said month. If this plain provision in regard to the time contained in the notice can be evaded by showing a different...

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    • United States
    • Missouri Court of Appeals
    • January 11, 1943
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    • United States
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