Lazich v. Belanger

• Decision Date: 24 September 1940
• Docket Number: 8074.
• Parties: LAZICH v. BELANGER et al.
• Court: Montana Supreme Court

105 P.2d 738

111 Mont. 48

LAZICH v. BELANGER et al.

No. 8074.

Supreme Court of Montana

September 24, 1940

Appeal from Second District Court, Silver Bow County; T. E. Downey Judge.

Action by Robert Lazich, an infant, by Mrs. Genn Lazich, as guardian, against Joseph A. Belanger and others, for injuries sustained by the infant in a fall caused by lumber piled on a sidewalk in the City of Butte. From a judgment for the defendants, the plaintiff appeals.

Reversed and remanded, with directions.

Maury & Shone, of Butte, H. J. Freebourn, Atty. Gen., and W. B Freebourn, of Butte, for appellant.

L. C Fluent, T. Nolan, and J. F. Sullivan, all of Butte, for respondent.

ANGSTMAN Justice.

This is an appeal by plaintiff from a judgment in favor of defendants. The judgment was entered after demurrers to the amended complaint were sustained and plaintiff declined to further amend the complaint.

The appeal presents the question of the sufficiency of the amended complaint which was filed in May, 1939. It alleges in substance that on January 24, 1938, the plaintiff, who was seven years of age when the complaint was filed, tripped and stumbled over a pile of lumber on a sidewalk in the city of Butte, causing him to fall and sustain permanent injuries that the lumber was piled on the sidewalk by defendant Belanger acting within the scope of his employment with defendants Lawlor & Rowe and Patrick J. Driscoll, who were engaged in repairing and improving a certain building at 216 South Wyoming Street in Butte; that it was piled a foot or more above the level of the sidewalk and in such a manner as to constitute an obstruction dangerous to pedestrians; that all defendants had notice and knowledge of the obstruction and a reasonable opportunity to remove it before the injury to plaintiff, but that they negligently permitted the obstruction to remain on the sidewalk until plaintiff was injured.

The complaint contains this paragraph: "That at no time within sixty days after the 24th day of January, 1938, the day on which plaintiff was injured, was Robert Lazich capable, mentally or physically, of filing any notice of injury with the city of Butte, or of giving any notice of injury to the city of Butte. He was not, during such time more than seven years old. Through no fault of his own, he could not read better than other persons of his age, nor could he write better than other persons of his age, and there was no person appointed guardian by any court over his person or over his estate previous to the 11th day of October, 1938. That his mother, Mrs. Genn Lazich, and his father, George Lazich were persons ignorant of the law and neither of them knew or had reason to believe that any notice in writing was useful or required by law to be given to the city of Butte, although it is a fact that during such sixty days at some time, the exact day being unknown, the mother of the plaintiff, this present guardian, did give notice to the mayor and the city attorney of the city of Butte verbally of the happening of the said accident, the place where it happened and the nature of the obstruction and the extent of the injuries as far as known at that time. That on the 13th day of October, 1938, within two days after the appointment of Mrs. Genn Lazich as guardian, notice in writing of the said injuries to Robert Lazich was given to the city of Butte, defendant, and to the Hon.

Charles A. Hauswirth, mayor thereof, and to the city council thereof, and such notice did state the time of the injuries and place where the obstruction which caused the injuries was situated, and such notice was given with all due diligence, within a reasonable time after the appointment of the said guardian, and this action at law was commenced with all diligence and within a reasonable time after the 13th day of October, 1938."

The city contends that because of Chapter 122, Laws of 1937, the demurrer to the amended complaint was properly sustained. That chapter in part provides: "Before any city or town in this State shall be liable for damages to person and/or property for, or on account of, any injury or loss alleged to have been received or suffered by reason of any defect or obstructions in any bridge, street, road, sidewalk, culvert, park, public ground, ferry-boat, or public works of any kind in said city or town, *** the person alleged to have suffered such injury or damage, or someone in his behalf, shall give to the city or town council, commission, manager, or other governing body of such city or town, within sixty days after such injury is alleged to have been received or suffered, written notice thereof, which notice shall state the time when and the place where such injury alleged to have occurred."

Plaintiff takes the position that Chapter 122 has no application to an infant of tender years, such as plaintiff was at the time of the injuries. The courts are not in agreement as to whether a statute requiring notice of an injury to be given to a city has application to a minor. The numerical weight of authority dealing specifically with the rights of an infant, holds that such statutes do apply to minors. Of those so holding are the following: Sherfey v. City of Brazil, 213 Ind. 493, 15 N.E.2d 568; City of Birmingham v. Weston, 233 Ala. 563, 172 So. 643, 109 A.L.R. 970; Baker v. Town of Manitou, 8 Cir., 277 F. 232; Madden v. Springfield, 131 Mass. 441; Dechant v. City of Hays, 112 Kan. 729, 212 P. 682; Hurley v. Town of Bingham, 63 Utah 589, 228 P. 213; Davidson v. City of Muskegon, 111 Mich. 454, 69 N.W. 670, and Palmer v. Cedar Rapids, 165 Iowa 595, 146 N.W. 827, Ann.Cas.1916E, 558.

While, as above stated, the above cases represent the majority view among the courts dealing specifically with infants, we are more impressed with the reasonableness of the minority view, particularly when we consider the provisions of subdivision 1 of the Fourteenth Amendment to the Constitution of the United States. The minority view is sustained by the following cases: McDonald v. City of Spring Valley, 285 Ill. 52, 120 N.E. 476, 2 A.L.R. 1359; Costello v. City of Aurora, 295 Ill.App. 510, 15 N.E.2d 38; Russo v. City of New York, 258 N.Y. 344, 179 N.E. 762; Adonnino v. Village of Mount Morris, 171 Misc. 383, 12 N.Y.S.2d 658.

And neither should the rights of the infant be prejudiced by the omission of the parents to give the notice. Briggs v. Village of Peekskill, Co.Ct., 16 N.Y.S.2d 873; Murphy v. Village of Fort Edward, 213 N.Y. 397, 107 N.E. 716, Ann.Cas.1916C, 1040.

There are many cases holding that when the injured person is mentally and physically incapacitated from giving...