Howell v. City of Hutchinson, 39686
| Decision Date | 09 April 1955 |
| Docket Number | No. 39686,39686 |
| Citation | 282 P.2d 373,177 Kan. 722 |
| Parties | , 63 A.L.R.2d 882 John M. HOWELL and Esther L. Howell, Appellants, v. CITY OF HUTCHINSON, Reno County, Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The statute appearing as G.S.1949, 12-105 is a valid exercise of legislative power and the filing by a claimant of a written statement with the city clerk complying substantially with the requirements of the statute is a condition precedent to the maintenance by him of an action against the city.
2. The record examined in an action against a city to recover damages for injuries to property, and held, that the statement of claim filed by the plaintiffs with the city clerk did not comply substantially with the requirements of G.S.1949, 12-105.
J. Richards Hunter, Hutchinson, argued the cause, and Walter F. Jones and Harry H. Dunn, Hutchinson, were with him on the brief, for appellants.
Fred C. Littooy, City Attorney, Hutchinson, argued the cause and was on the brief for appellee.
This was an action by plaintiffs to recover damages for injuries to property as later mentioned. The trial court struck certain allegations from the plaintiffs' second amended petition and they have appealed. An opinion is this day being filed in Wildin v. City of Hutchinson, Kan., 282 P.2d 377, and reference is made to portions thereof applicable to the situation here considered.
It is stated in the record that motions to strike were directed to the plaintiffs' original and amended petitions, after which the plaintiffs filed their second amended petition, hereafter called the petition, in which it was alleged, in substance, that plaintiffs were the owners of described real estate; that Cow Creek is a natural water course flowing from an area northwest of the city of Hutchinson, through the city and to a junction with the Arkansas River southeast of the city; that at some time prior to 1950 the city constructed Harsha Drainage Canal along the course of Cow Creek to a point within the city where Cow Creek turns east and Harsha Canal continues south to the Arkansas River; that for many years prior to 1950 a low dike had been maintained along the south side of Cow Creek preventing the creek from flowing south to flood areas on the west side of the creek and of the canal; that about August 1, 1950, the waters of Cow Creek were approaching flood stage and for the purpose of protecting the portion of the city east of the canal the city strengthened and raised the dike on the north and east sides of the canal and while doing so failed and neglected to strengthen and raise the dikes on the south and west sides of the canal with the result flood waters broke over on the south and west sides, causing damage to personal and real property of plaintiffs in specified amounts. Plaintiffs further alleged that in accordance with G.S.1949, 12-105, they filed with the city clerk on October 25, 1950, a written statement detailing the nature of their damages and the cause and circumstances relating thereto, a copy of the statement being attached to the petition; that by inadvertence an omission was made of the date of said overflow but that the overflow was on August 2, 1950, and was the only overflow within a period of four months prior to October 25, 1950, and the only overflow of that character reaching plaintiffs' premises which occurred during a period of at least two years prior to the above date; that during the period of the overflow the city officials were observing the waters of Cow Creek and Harsha Canal near the place where the waters broke through and were engaged in taking action to protect property on the east side of the creek and canal. Plaintiffs then pleaded at length that after August 2 they and others similarly situated appeared before the city commission and advised the commission they would make claims for compensation; that other meetings were had by other property owners with the commission at which measures for further protection were had; that all such conferences were had prior to the filing of their claim; that the city was not misled by any omission of the date in their claim, but on the contrary had full and complete notice of the time and place of the occurrences which caused the plaintiffs' injury and damages.
Omitting those parts unnecessary to disposal of the appeal, the notice filed with the city clerk read as follows:
'To: The City of Hutchinson: L. E. Baird, Mayor; Fred Henney; Richard Belitzer; William Shaw; J. W. Vandaveer; City Commissioners:
'You are hereby notified that the undersigned, John M. Howell and Esther L. Howell, his wife, 329 N. Whiteside Street, Hutchinson, Kansas, being the owner(s) of personal or real property (or both) legally
'House and Business building located on * * * (describing real estate)
'The basement was full of water and up three inches in our house in which we live. The water was over waist deep in the market building. We have oak floors in the house and they buckled up.
make(s) claim against the City of Hutchinson for damage to said property in the following amounts: * * * (list of personal property and values) Damage to store building & fixtures $254.50. Total $200.00.
'There was also a lot of silt settled around over the place, and I lost about $75.00 rent on the store building while cleaning up said damage resulting from and being cause of the careless, negligent and wrongful acts of the City of Hutchinson in diverting flood water from Cow Creek and the Harsha Canal in and upon the personal and real property of this claimant; and the careless, negligent and wrongful acts of the City of Hutchinson in the maintenance and operation of the Harsha Canal and the construction of dikes on the east and north side of Harsha Canal and the east and north side of Cow Creek; and the careless, negligent and wrongful acts of the City in the maintenance and operation of the Harsha Canal and the wrongful and negligent obstruction of the said Canal, all causing water to be diverted from said canal in and upon the personal and real property of this claimant, described above, and causing the damage itemized above.
'S/ John M. Howell
'S/ Esther L. Howell
'(verification)'
The defendant city filed its motion that all the allegations of the petition commencing 'that by inadvertence' and subsequent thereto be stricken as incompetent, irrelevant, immaterial, constituting no part of a cause of action and that they were purported conclusions of law and non-actionable statements of purported facts. After argument on the motion the trial court took the matter under consideration and then rendered a memorandum opinion which it made a part of its entry of judgment in which it sustained the motion, allowed the plaintiffs twenty days to file an amended petition and if that be not done the cause should stand as dismissed.
In due time the plaintiffs perfected their appeal to this court, where they specify as error the sustaining of the motion to strike.
The question presented by this appeal turns on compliance with the statute appearing now as G.S.1949, 12-105, and as far as it is necessary to note, it...
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