Higginbotham v. City of Charleston
| Decision Date | 02 April 1974 |
| Docket Number | Nos. 13163,13164,s. 13163 |
| Parties | Evelyn HIGGINBOTHAM et al., Robert S. Higginbotham v. CITY OF CHARLESTON, etc., et al. Evelyn HIGGINBOTHAM et al. v. CITY OF CHARLESTON, etc. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. Where a municipal charter requires as a condition precedent to the right to sue the city that the city be served with notice of an injury within a prescribed time, such notice properly served by the injured party affords the city a full opportunity for investigation of the injury and is sufficient to support an action by the injured party's spouse for loss of consortium and for the payment of medical expenses incurred by reason of the injury.
2. This Court will take judicial notice of a municipal charter.
3. Assignments of error that are not argued in the appellant's brief may be deemed by this Court to be waived.
4. Article VI, Section 35 of the Constitution of West Virginia which provides that the state shall never be made a defendant in any court of law or equity does not apply to a municipality and does not afford such municipality and protection from suit.
5. 'In an action wherein the compensation which the plaintiff is entitled to recover is indeterminate in character, the verdict of the jury may not be set aside as excessive unless it is not supported by evidence or is so large that the amount thereof indicates that the jury was influenced by passion, partiality, prejudice or corruption, or entertained a mistaken view of the case.' Point 4, Syllabus, Browder v. County Court of Webster County, 145 W.Va. 696, 116 S.E.2d 867.
6. 'A jury verdict based on conflicting testimony, involving credibility of witnesses and reasonable inference to be drawn from testimony and approved by the trial court, will not be set aside by this Court on the ground that it is contrary to the evidence unless in that respect it is clearly wrong.' Point 9, Syllabus, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897.
Preiser & Wilson, W. Dale Greene, Charleston, for Higginbotham.
Jackson, Kelly, Holt & O'Farrell, W. Warren Upton and Scott L. Messmore, Charleston, for City of Charleston.
In a civil action in the Common Pleas Court of Kanawha County the plaintiffs, Evelyn Higginbotham and Robert S. Higginbotham, sought recovery against the defendants, The City of Charleston, West Virginia Water Company, a corporation, United Fuel Gas Company, a corporation, and Appalachian Power Company, a corporation, for damages alleged to have been incurred by reason of injuries suffered by Evelyn Higginbotham she fell on said city's property. Robert S. Higginbotham, her husband, sought recovery in that action for loss of consortium and for the payment of medical expenses incurred by reason of his wife's injury. Prior to the trial of this action the West Virginia Water Company, the United Fuel Gas Company and the Appalachian Power Company were dismissed on motions for summary judgment.
On March 24, 1964, the plaintiff, Evelyn Higginbotham, parked her automobile in a space near the curb on Oney Street in the City of Charleston. As she got out of her car she stepped upon a grassy strip which was situate between the sidewalk and the curb. Thereupon, the sod upon which she stepped suddenly gave way and her foot went into a hole causing her to fall to the ground. In the complaint Evelyn Higginbotham alleged that by reason of the negligence of the defendant city she sustained severe and permanent injuries for which she sought recovery in the sum of $100,000.00.
At the trial of this matter before a jury counsel for the defendant city moved the court to strike the plaintiffs' evidence and direct a verdict for the defendant as to Robert S. Higginbotham's claim, on the ground that 'he has filed no notice with the City of Charleston that he intended to prosecute a claim.' The court denied this motion and upon trial the jury returned a verdict which awarded Evelyn Higginbotham the sum of $20,000.00 and Robert S. Higginbotham the sum of $7,500.00. The defendant then filed a motion to set aside the verdict which motion was overruled. The judgment which was entered on the verdict was subsequently appealed by the defendant to the Circuit Court of Kanawha County.
Upon that appeal the circuit court reversed the judgment in relation to the $7,500.00 verdict for Robert S. Higginbotham on the ground that said claim was extinguished by that plaintiff's failure to file a notice of claim with the City of Charleston as required by its charter. The judgment of $20,000.00 in favor of Evelyn Higginbotham was affirmed. The proceeding in this Court involves two appeals. Robert S. Higginbotham appeals from the reversal of the $7,500.00 judgment rendered in his favor in the trial court, contending that the notice of injury filed by his wife gave the defendant city sufficient notice of his claim. He asserts that the notice provision of the city charter was thereby satisfied.
The City of Charleston's assignments of error are more numerous. It alleges that (1) the court erred in refusing to grant the defendant a directed verdict on the ground that the plaintiffs did not allege and prove, as required by Code, 1931, 17--10--17, as amended, that the city charter required the city to keep the streets and sidewalks therein the repair; (2) the court erred in giving plaintiff's Instructions Nos. 1, 2, 3, 4 and 5; (3) the court erred in admitting into evidence the testimony of Dr. H. M. Hills relative to an injury received by Mrs. Higginbotham four and one-half years after the fall on the street; (4) Code, 1931, 17--10--17, as amended, is unconstitutional in that it attempts to deprive the City of Charleston of its governmental immunity from suit; (5) the verdict was excessive; and (6) the verdict was contrary to the law and evidence.
Considering first the appeal of Robert S. Higginbotham, it is conceded that said plaintiff did not file a notice with the city informing it that he intended to prosecute a claim against it, as allegedly required by Section 95 of the city charter. His claim, as heretofore noted consisted of loss of his wife's consortium as a result of her injury and the payment of medical expenses incurred by reason thereof.
In pertinent part Section 95 of the Charter of the City of Charleston provides: 'No action shall be maintained against the City of Charleston for damages for a personal injury * * * unless a written verified statement of the nature of the claim * * * shall have been filed with the city clerk within thirty days after the cause of action shall have accrued.' This appellant contends that the notice of her injury served by Mrs. Higginbotham upon the city satisfied the requirement of the above charter provision.
The City of Charleston asserts that the claim of Robert Higginbotham is separate and distinct from that of his wife and that he must, therefore, have filed a notice with the city setting forth the nature of the claim for which he intended to prosecute an action. The basic question presented on this appeal is whether, under the pertinent charter provision, the failure of Robert Higginbotham to give to the city specific notice of his claim precludes him from prosecuting such claim.
In Thompson v. City of Charleston, 118 W.Va. 391, 191 S.E. 547 (1937), the Court held that Section 95 of the Charter of the City of Charleston, relating to the filing of claims in personal injury cases against the city, imposes a condition precedent to the right of the claimant to sue the city. That condition requires the plaintiff to notify the city of the claim and the nature thereof. This holding was reiterated in Thomas v. City of South Charleston, 148 W.Va. 577, 136 S.E.2d 788 (1964).
We are in agreement with the decisions in the Thompson and Thomas cases which hold that the notice of an injury and a consequent claim against the city must be served upon said city before an action can be instituted. The instant case, however, presents a question not heretofore answered by this Court. Must the husband serve a notice upon the city notifying it of his claim for loss of consortium and for medical expenses for his wife when her notice, properly served, fully informed the city of the circumstances of her injury?
In Thomas v. City of South Charleston, Supra, the Court readily acknowledged that requiring notice to the city as a condition precedent to the right to sue 'may be regarded as the annunciation or reiteration of a harsh rule'. It then related that there are sound reasons for such rule. The reasons for the rule are reflected in 56 Am.Jur.2d, Municipal Corporations, etc., § 686, in the following language:
The purpose of provisions requiring notice or statement of claim as a condition precedent to instituting a suit for damages against a municipal corporation is to give the municipal authorities prompt notice of the injury and the surrounding circumstances in order that the matter may be investigated while the matter is fresh, the witnesses available, and before conditions have changed materially, and that the liability of the municipality or the extent of liability may be determined. This has a tendency to discourage litigation, since the proper authorities of the municipal corporation or county are enabled to determine intelligently whether there is liability, and if so, to make prompt settlement, and to avoid the costs of suit. On the other hand, if investigation discloses that there is no liability, or that it is desirable to litigate the matter, the municipal corporation can better prepare for the defense of a lawsuit.
In the case under consideration Mrs. Higginbotham, in accordance with the requirements of the pertinent charter provision, notified the defendant city of her injury and of her intention to institute an action for the recovery of damages. The city was thereby afforded a full, timely and complete...
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