Holtham v. City of Detroit

• Decision Date: 08 March 1904
• Court: Michigan Supreme Court
• Parties: HOLTHAM v. CITY OF DETROIT.

98 N.W. 754

136 Mich. 17

HOLTHAM v. CITY OF DETROIT.

Supreme Court of Michigan

March 8, 1904

Error to Circuit Court, Wayne County; Robert E. Frazer, Judge.

Action by George Holtham against the city of Detroit. From a judgment for plaintiff, defendant brings error. Reversed.

P.J. M. Hally and A. B. Hall (T. E. Tarsney, of counsel), for appellant.

Washington I. Robinson and Bertrand Aldrich, for appellee.

CARPENTER J.

Plaintiff recovered a judgment in the court below for personal injuries resulting from a defective sidewalk in the city of Detroit. He did not, as required by section 2 of Act No. 463, p. 724, of the Local Acts of 1895, serve a notice in writing upon the head of the law department of the city of Detroit. That section provides: 'No action shall be brought against said city or any of its boards commissioners or officers, for any negligent injury, unless it be commenced within one year from the time when the injury was received, nor unless a notice shall be given in writing within three months from the time of such injury, to the head of the law department or to his chief assistant, of the time place and cause of such injury and the nature thereof.' No written notice whatever was given to the law department of the city of Detroit; but within said three months plaintiff saw Mr. Hally, one of the assistants, but not the chief assistant, of the corporation counsel, who, he says, told him to draw up his claim and present it to the aldermen, and when it came before the committee he would 'do what he could for me.' On cross-examination he testified: 'I am not positive that Hally didn't tell me that I had to serve the corporation counsel. * * * You might have said it, and I not have heard it. I am hard of hearing.' The claim was duly presented to the committee on claims and accounts. The secretary of that committee notified plaintiff to appear before it and produce his witnesses. He did appear, and was there examined by Mr Hally. The committee was advised by Mr. Hally that the failure of the plaintiff to give the notice under consideration relieved the city from liability, and it denied him relief. The trial court left it to the jury to determine whether the office of the corporation counsel did not waive the notice. The jury rendered a verdict for the plaintiff.

In submitting this issue to the jury, we think the learned trial judge erred. Even if Mr. Hally had authority to waive the notice (a point which will receive our attention in this opinion), the testimony of the plaintiff did not warrant the inference that he did waive it. It is consistent with the plaintiff's testimony, as shown by the quotations in this opinion from his cross-examination, that Mr. Hally instructed him to serve a written notice upon the corporation counsel and, if such instruction was given, there certainly was no waiver. But we do not think that Mr. Hally had authority to waive this notice. It is true that he was an assistant to the corporation counsel, and it is also true that he appeared for the city in this case both at the hearing before the committee and at the trial in court. Surely it will not be claimed that these subsequent appearances of Mr. Hally had any bearing upon his authority to deal with the plaintiff. Mr. Hally's authority to deal with the plaintiff would not have been lessened, had his connection with the office been determined before such subsequent hearings, or if the city had been represented at those hearings by some other attorney. His authority to waive the notice must therefore be determined by the statute. This statute requires a written notice of the time, place, cause, and nature of plaintiff's injury to be served on the corporation counsel or his chief assistant. We cannot presume that this statute was passed in the interest of the corporation counsel. We must presume that it was passed in the interest of the city, and it is to the obvious advantage of...