Lindley v. City of Detroit

• Decision Date: 03 June 1902
• Citation: 131 Mich. 8,90 N.W. 665
• Court: Michigan Supreme Court
• Parties: LINDLEY v. CITY OF DETROIT.

90 N.W. 665

131 Mich. 8

LINDLEY v. CITY OF DETROIT.

Supreme Court of Michigan

June 3, 1902

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Action by Hester H. Lindley against the city of Detroit. From a judgment for plaintiff, defendant appeals. Affirmed.

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

Moore &amp Moore (Samuel W. Burroughs, of counsel), for appellee.

HOOKER C.J.

Plaintiff was injured on a sidewalk June 3d. Notice was served on the common council on June 5th. The claim was referred by the council to its committee on claims, which proceeded to investigate the matter, calling to its assistance Mr. Hally an attache of the city counselor's office. On August 7th the committee took testimony concerning the claim, and there was testimony upon the trial that notice of the claim was on that day served upon Hally. This was contradicted, and raised a question for the jury, if the question was controlling. On August 15th the committee examined the plaintiff, and on November 13th reported against allowing the claim. This action was then brought, and a judgment was rendered for the plaintiff, and defendant has appealed.

The important question is that of waiver. It is based on the fact that the council and city attorney, through his subordinate acted upon the claim as presented by the council, and gave the plaintiff the right to suppose that they were willing to treat the notice as sufficient. We have often decided that the common council may waive the formalities of a notice. Germaine v. City of Muskegon, 105 Mich. 213, 63 N.W 78; Canfield v. City of Jackson, 112 Mich. 120, 70 N.W. 444; Griswold v. City of Ludington, 116 Mich. 401, 74 N.W. 663; Wright v. Village of Portland, 118 Mich. 23, 76 N.W. 141; Kriseler v. Le Valley, 122 Mich. 576, 81 N.W. 580. To view preceding link please click here Without intending to hold that the city attorney may waive notice upon him, and thereby bind the city, we have no hesitation in saying that the council may do so. Whether it has done so or not is usually a question of fact to be submitted to a jury, but the facts are undisputed in this case, and we think it was proper for the circuit judge to instruct the jury that by referring the claim to its committee to investigate upon its merits, and through the action of its committee in doing so, it waived a right of further notice.

It is manifestly improper to allow proof of the condition of the sidewalk on a subsequent occasion, without proof that the condition has remained unchanged from the time of the accident, unless it is so near in point of time as to lead to a fair inference that the condition has remained unchanged. We think that the next morning was not so remote as to render the testimony inadmissible. The defendant does not appear to have claimed that there had been any change.

The plaintiff testified, 'I have suffered a great many severe headaches since I was injured. Q. To what do you attribute that? What do you think is the cause of it? (Objected to as incompetent and immaterial.) Q. Did you have headaches? A. No, sir; I was perfectly well before. Co...