Hooge v. City of Milnor

• Citation: 217 N.W. 163,56 N.D. 285
• Decision Date: 29 December 1927
• Docket Number: No. 5429.,5429.
• Parties: HOOGE v. CITY OF MILNOR.
• Court: United States State Supreme Court of North Dakota

56 N.D. 285

217 N.W. 163

HOOGE

v.CITY OF MILNOR.

No. 5429.

Supreme Court of North Dakota.

Dec. 29, 1927.

Syllabus by the Court.

Section 3627 of the Compiled Laws of 1913, requiring notice of claim for damages sought to be recovered from cities, must be strictly construed so far as concerns the necessity for such notice.

The sufficiency of a notice given under section 3627 of the Compiled Laws of 1913 being a remedial matter, the statutory provisions concerning its contents should be liberally construed, but there must be a substantial compliance.

Section 3627 of the Compiled Laws of 1913 requires that notice of claims against cities must describe the time, place, cause, and extent of the damages or injury and the amount of damages claimed therefor. It is held that a notice which advises a city of the time, place, and cause of an injury, and that “as a result thereof the deceased suffered very great injuries from which” two days later he died, that the death was caused by the fall previously described, that the amount of damages claimed is $5,000, and that the deceased suffered both internal and external injuries, constitutes a “death claim,” and is a substantial compliance with the statute.

Cases arising under statutes requiring the nature of the injuries to be stated or described are distinguished, and the sufficiency of such a notice as a basis for a claim for personal injuries is not decided.

The provisions of section 3627 of the Compiled Laws of 1913, to the effect that, in case it appears by the affidavit of a reputable physician that the person injured was mentally incapable of making a statement during the time provided for giving notice, that such statement may be made within 30 days after the complainant becomes competent to make the same, and, in case of the death of the person injured prior to his becoming competent, by a person having knowledge of the facts, reasonably construed, gives 30 days within which an injured person may file a claim, which period may be extended by reason of mental incapacity, and, in case of the death of the injured person, caused by his injuries, within the first 30-day period, the notice may be given within 30 days thereafter by any person having knowledge of the facts.

Receipt of notice of claim by the city auditor which had been sent by registered mail is a compliance with that provision of section 3627 of the Compiled Laws of 1913 which requires the notice to be “filed in the office of the city auditor.”

Appeal from District Court, Sargent County; Geo. M. McKenna, Judge.

Action by Emily Hooge, widow of John Hooge, against the City of Milnor. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.Lauder & Lauder and Purcell & Heder, all of Wahpeton, for appellant.

H. B. Thompson, of Milnor, and Divet, Shure, Murphy & Thorp, of Fargo, for respondent.

BIRDZELL, C. J.

This is an action by the widow of a deceased person to recover damages from the City of Milnor on account of alleged negligence in maintaining a sidewalk, on account of which the deceased fell and sustained injuries from which he died about two days later. Upon the trial objection was made and sustained to the introduction in evidence of the notice of claim. A verdict for the defendant was directed upon which judgment of dismissal was entered. The appeal is from the judgment and the sole question for consideration here is the correctness of the ruling of the trial court excluding the notice of claim. The notice was in two parts and (omitting verification) reads as follows:

“The City of Milnor, North Dakota, to the Heirs at Law of John Hooge, Deceased, Dr.:

For damages resulting from the death of John Hooge, on the 19th day of December, 1925, which death was caused by an accident caused by the defective, unsafe, and dangerous condition of the sidewalk on one of the streets of the said city of Milnor, the facts of such accident appearing in the affidavit of Clarence Hooge hereunto attached and made a part of this claim; that no part of said claim has been paid. $5,000.00.

State of North Dakota, County of Richland-ss.:

Clarence Hooge, being first duly sworn, deposes and says that the foregoing bill is just, true, and correct, and that the same has not been paid, or any part thereof, and that the said city of Milnor is now justly indebted to the heirs at law of the said John Hooge in the said sum of $5,000. Clarence Hooge.”

“State of North Dakota, County of Richland-ss.:

Clarence Hooge, being first duly sworn, on his oath deposes and says that he is the son of John Hooge, now deceased, who resided at the time of his death in the city of Milnor in the county of Sargent and state of North Dakota; that the said John Hooge died on the 19th day of December, 1925, at his home in the said city of Milnor in said county and state; that on the 17th day of December, 1925, the said deceased met with a severe accident while walking upon the sidewalk in front of lot 12 in block 4, Swenson's addition to the said city of Milnor, N. D.; that said accident was caused by the defective, unsafe, and dangerous condition of the said sidewalk as follows: That at said time there was a deep and wide crack in the said sidewalk at the place of said accident; that, because of said crack in said sidewalk, a part of the walk was thrust upward to the extent of three or four inches, and that, while the said deceased was walking as aforesaid upon said sidewalk as aforesaid, he struck the part of the said sidewalk that had been raised, and the deceased was thereby thrown to the said walk, and, as a result thereof, the deceased suffered very great injuries, from which, on the 19th day of December, 1925, he died; that the death of the deceased was caused by the said fall upon the sidewalk caused as aforesaid, that the amount of damage claimed by reason of the said accident is $5,000; that the said claim is made by the heirs at law of the said deceased; that by reason of the facts aforesaid the deceased suffered both internal and external injuries.

Affiant further says that he has actual personal knowledge of the facts hereinbefore stated concerning the accident to the said deceased, and the fact of his death caused by such injuries.

Affiant further says that no part of the damages resulting from the injuries aforesaid to the said deceased have been paid.

Clarence Hooge.”

Objections were made on the ground of the insufficiency of the notice under sections 3627 and 3628, Compiled Laws of 1913; various grounds of insufficiency being specified, some of which were overruled. For the present these will be passed over, and attention will be directed to the principal ground upon which objection was sustained. After describing the character and location of the defect, and the manner in which the deceased came in contact therewith, the notice reads:

“And as a result thereof the deceased suffered very great injuries from which, on the 19th day of December, 1925, he died; that the death of the deceased was caused by the said fall upon the sidewalk caused as aforesaid; that the amount of damage claimed by reason of the said accident is $5,000; * * * that by reason of the facts aforesaid the deceased suffered both internal and external injuries.”

The trial court held this not to be a sufficient compliance with the statute in its requirement that the notice should state the “extent of the damages or injury, and the amount of damages claimed therefor.” Section 3627, Compiled Laws of 1913. The statute reads:

“All claims against cities for damages or injuries alleged to have arisen from the defective, unsafe, dangerous or obstructed condition of any street, crosswalk, sidewalk, culvert or bridge of any city, or from the negligence of the city authorities in respect to any such street, crosswalk, sidewalk, culvert or bridge, shall, within thirty days from the happening of such injury, be filed in the office of the city auditor, signed and properly verified by the claimant, describing the time, place, cause and extent of the damages or injury, and the amount of damages claimed therefor, and upon the trial of an action for the recovery of damages by reason of such injury, the claimant shall not be permitted to prove any different time, place, cause or manner or extent of the injury complained of, or any greater amount of damages. In case it appears by the affidavit of a reputable physician which shall be prima facie evidence of the fact that the person injured was, by the injury complained of, rendered mentally incapable of making such statement during the time herein provided, such statement may be made within thirty days after such complainant becomes competent to make the same, but such affidavit may be controverted on the trial of an action for such damages, and in case of the death of the person injured prior to his becoming competent to make such statement, the same may be made within thirty days after his death, by any person having knowledge of the facts, and the person making such statement shall set forth therein specifically the facts relating to such injury as aforesaid, of which he has personal knowledge, and shall positively verify such statement and shall verify the facts therein stated of which he has no personal knowledge, to the best of his knowledge, information and belief.”

This is followed by a section which provides that no action shall be maintained against a city, unless the claim was filed in the office of the city auditor with a verified abstract of the facts out of which the cause of action arose, and by another section limiting the period for bringing such suits to six months after the filing of the claim.

The respondent maintains that the notice is insufficient, because it fails to specify the character and location of the injuries alleged to have been sustained by the deceased, which, it is claimed, resulted in his death, and that the notice is not aided in this respect by the statement that he died...