Kunkel v. City of St. Louis

• Decision Date: 28 July 1942
• Docket Number: 37806
• Citation: 163 S.W.2d 1014,349 Mo. 1121
• Parties: Andrew Kunkel v. The City of St. Louis, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

163 S.W.2d 1014

349 Mo. 1121

Andrew Kunkel v. The City of St. Louis, a Municipal Corporation, Appellant

No. 37806

Supreme Court of Missouri

July 28, 1942

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Affirmed.

Joseph F. Holland, George L. Stemmler, Joseph B. Haring and Orville W. Richardson for appellant.

(1) The court erred in sustaining plaintiff's motion for a new trial. Plaintiff, having admitted that he failed to give to the defendant the written notice required by R. S. 1939 Section 7636, within ninety days after his alleged fall on February 1, 1940, then failed to prove any sufficient legal excuse for failure to give such notice until his petition was served on the City on July 17, 1940. Plaintiff's reply admitted that plaintiff did not give to the defendant the ninety days' notice required by statute. Plaintiff failed to prove that he suffered from any incapacity, physical or mental, as to make it reasonably impossible for him either to serve the notice or procure it to be served within the ninety-day period prescribed by R. S. Mo. 1939, section 7636. (a) The legislative purpose of requiring that notice of tort claims against municipalities be served within a fixed period of time is a wise one, designed to prevent needless expenditure of taxes, to protect the City from stale and false claims and to enable the City to investigate the case immediately so that it may make settlement or prepare for trial. David v. St. Louis, 339 Mo. 241, 96 S.W.2d 353; Cole v. St. Joseph, 50 S.W.2d 623, 82 A. L. R 742. (b) An injured party may be excused from complying with such statutes if he is suffering from an incapacity, physical and mental, as to make it reasonably impossible for him either to serve notice or procure it to be served within the period fixed by statute. Randolph v. City of Springfield, 320 Mo. 33, 257 S.W. 449, and subsequent appeal 275 S.W. 567. (c) The plaintiff in this case failed to show that he suffered from any such incapacity. The mere fact that he suffered pain and took sedatives during his stay in the hospital affords no excuse for the failure to give notice. The undisputed evidence showed that plaintiff could at least call or write a lawyer or ask someone else to do that for him. Hastings v. Foxworthy, 45 Neb. 676, 63 N.W. 955, 34 L. R. A. 321; Saunders v. City of Boston, 167 Mass. 595, 46 N.E. 98; Townsend v. City of Boston, 232 Mass. 451, 122 N.E. 395; Ehrhardt v. Seattle, 40 Wash. 221, 82 P. 296; May v. City of Boston, 150 Mass. 517, 23 N.E. 220; Ray v. St. Paul, 44 Minn. 340, 46 N.W. 675; Egan v. Township of Saltfleet, 29 Ont. L. Rep. 116; Goodwin v. Fall River, 228 Mass. 529, 117 N.E. 796; Hall v. City of Spokane, 79 Wash. 303, 140 P. 348; O'Connor v. City of Hamilton, 10 Ont. L. Rep. 529, reversing 8 Ont. L. Rep. 391. (2) The plaintiff's own statements that he was "half crazy" with pain and "didn't keep track of nothing hardly to know whether I was living or not" and that he did not know what he was doing, were mere conclusions, self-serving in nature, offered without further explanation or relation to any fact by which the jury could judge his capacity to hire a lawyer, and contradicted by other testimony of plaintiff himself and the hospital records. As such conclusions they had no probative force. Lindquist v. S. S. Kresge Co., 345 Mo. 849, 136 S.W.2d 303; Beitling v. S. S. Kresge Co., 233 Mo.App. 1195, 116 S.W.2d 522; Gore v. Whitmore Hotel Co., 229 Mo.App. 910, 83 S.W.2d 114; Clevinger v. St. Louis-S. F. Ry. Co., 341, Mo. 797, 109 S.W.2d 369. (a) If intended to convey the inference that plaintiff did not have mental capacity sufficient to procure service of the notice, then such conclusions were valueless as an attempt to pass upon the very matter in issue and to invade the province of the jury. Baptiste v. Boatmen's Natl. Bank, 148 S.W.2d 743. (b) In any event, such conclusions cannot prevail over evidentiary facts to the contrary. The testimony of plaintiff on cross-examination that he was conscious, rational, knew what he was doing, knew what was going on around him, and had full use of his faculties (all borne out by the hospital record, his own exhibit), at least canceled the conclusions of plaintiff on direct examination and left them without probative force. Siegel v. M.-K.-T. R. Co., 334 Mo. 1130, 119 S.W.2d 376; Steele v. K. C. Ry. Co., 265 Mo. 97, 175 S.W. 177; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644. (c) The testimony of Dr. Snyder that an individual with a fractured femur "wouldn't think very clearly" and would be in agony precluding "any possibility of thinking clearly, intelligently, rationally" was not substantial evidence that plaintiff was mentally incapacitated for any length of time whatsoever, since the doctor examined plaintiff only once, and that was nine months after the fall for the purpose of testifying in the case, did not obtain a history of plaintiff's suffering or of his treatment, did not inspect the hospital records on these points, and was not told in any hypothetical question what the previous testimony of plaintiff had been. His testimony was, therefore, a mere conclusion, with no direct evidence anywhere in the record to support it, and, as given was not explained by or related to plaintiff's own case as to any one time or period of time. Hall v. Mercantile Trust Co., 59 S.W.2d 664; De Donato v. Wells, 328 Mo. 448, 41 S.W.2d 184; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 82; Nute v. Fry, 341 Mo. 1138, 111 S.W.2d 84; Kimmie v. Terminal R. R. Assn., 334 Mo. 596, 66 S.W.2d 561. (d) Plaintiff was not incapacitated since he could procure someone else to serve the notice for him, and it is immaterial that he was physically unable to leave the hospital so long as he could call or write to a lawyer or ask that someone else do that for him. He was visited by his wife, friends and doctors during the ninety-day period, and they presumably could and would have called a lawyer upon his request. Harris v. City of Genoa, 111 Neb. 91, 195 N.W. 953; Mitchell v. City of Worcester, 129 Mass. 525; Lyons v. City of Cambridge, 132 Mass. 534; Saunders v. City of Boston, 167 Mass. 595, 46 N.E. 98; Townsend v. City of Boston, 232 Mass. 451, 122 N.E. 395; Ehrhardt v. Seattle, 40 Wash. 221, 82 P. 296; Egan v. Township of Saltfleet, 29 Ont. L. Rep. 116; McNulty v. City of Cambridge, 130 Mass. 275; May v. City of Boston, 150 Mass. 517, 23 N.E. 220; Goodwin v. Fall River, 228 Mass. 529, 117 N.E. 796. Ignorance of the law requiring service of notice can afford no excuse for failure to give notice. Giovinazzo v. Canadian Pacific Ry. Co., 19 Ont. L. Rep. 325; O'Connor v. City of Hamilton, 8 Ont. L. Rep. 391. (3) Even if for a short period between February 1st and July 17, 1940, plaintiff was incapacitated physically and mentally as to make it reasonably impossible for him to procure notice to be served, nevertheless, there was at least a five-week period immediately after his fall and before a cast was put on his leg, during which time he was not so incapacitated. He was conscious, rational, suffered comparatively little pain and was given comparatively few sedatives, made a full report and account of the accident to the police, his friends and doctors, was able to give a full past medical history at the hospital, etc. Since that first five-week period, during which time he was not incapacitated, was a reasonable time for him to give notice, it is immaterial whether or not he thereafter became incapacitated for the rest of the ninety-day period or any part of it. Harris v. City of Genoa, 111 Neb. 91, 195 N.W. 953; Townsend v. City of Boston, 232 Mass. 451, 122 N.E. 395; Benson v. Seattle, 78 Wash. 541, 139 P. 501. (4) Even if it be considered that plaintiff was incapacitated physically and mentally as to make it reasonably impossible for him to procure service of notice by someone else until April 16, at which time, according to the hospital records, his pain had abated and his capacity had been restored, plaintiff's failure thereafter to give such notice within ninety days from the removal of such incapacity, constitutes a bar to his cause of action. Hastings v. Foxworthy, 45 Neb. 676, 63 N.W. 955, 34 L. R. A. 321; Hungerford v. Village of Waverly, 125 A.D. 311, 109 N.Y.S. 438. (5) Even if plaintiff was incapacitated until May 13, 1940, at which time the cast was removed from his leg and he was up on crutches and in a wheel chair, he was entitled to no more than a reasonable time (in no event to exceed ninety days) after removal of such incapacity, if any, on May 13th. His failure to serve notice until July 17, 1940, was an unreasonable delay and barred his recovery. Forsyth v. City of Oswego, 191 N.Y. 441, 84 N.E. 392, reversing 114 A.D. 616, 99 N.Y.S. 1022, and see dissenting opinion at 99 N.Y.S. l. c. 1026. (6) The burden of proof was upon the plaintiff to show (1) that he suffered the incapacity above mentioned, (2) the date of the removal of such incapacity and (3) that he served notice of petition on the City within a reasonable time after the removal of such incapacity. In this case plaintiff failed to prove any of the three above elements of his alleged excuse. Mitchell v. City of Worcester, 129 Mass. 525; Lyons v. City of Cambridge, 132 Mass. 534; May v. City of Boston, 150 Mass. 517, 23 N.E. 220; Rogers v. Port Chester, 234 N.Y. 182, 137 N.E. 19; Hungerford v. Village of Waverly, 125 A.D. 311, 109 N.Y.S. 438.

Douglas H. Jones, Arthur L. Wackwitz and Clark Hudson for respondent.

(1) Statute requires service within ninety days after injury of written notice on municipality of intention to claim damages. Sec. 7636, R. S. 1939. (2) Filing of petition in required time is sufficient notice. Wolff v. Kansas City, 296 Mo. 95, 246 S.W. 236; Hunt v. St....