Lyons v. The City of St. Joseph

• Decision Date: 22 May 1905
• Citation: 87 S.W. 588,112 Mo.App. 681
• Parties: ELIZABETH LYONS, Respondent, v. THE CITY OF ST. JOSEPH, Appellant
• Court: Kansas Court of Appeals

87 S.W. 588

112 Mo.App. 681

ELIZABETH LYONS, Respondent, v. THE CITY OF ST. JOSEPH, Appellant

Court of Appeals of Missouri, Kansas City

May 22, 1905

Appeal from Buchanan Circuit Court.--Hon. W. K. Amick, Special Judge.

REVERSED.

Judgment reversed.

James M. Wilson, City Counselor, and G. L. Zwick, Assistant City Counselor, for appellant.

(1) The notice introduced in evidence did not state the circumstances of the injury. So far as any information in the notice is concerned, the injury might have been caused by ice or snow an incline in the walk, a wet condition thereof, a banana peel, a protruding gas pipe, a broken plank, absence of bricks, water flowing under the walk, a telephone pole, an electric wire, or even a common assault. (2) The notice is a condition precedent to maintaining the suit and it must have reasonable certainty to be of any use whatever. This notice is a blank so far as any description of the defect is concerned. Stoors v. Denver, 11 Mun. Corp. Cases 560, 73 P. 1094; Reno v. St. Joseph, 169 Mo. 654.

J. B O'Connor and Thos. F. Ryan for respondent.

(1) Appellant in its first point made in its brief says that this case ought to be reversed because the notice introduced in evidence did not state the circumstances of the injury and that the notice is a condition precedent to the maintenance of the suit and must have reasonable certainty to be of any use whatever and that the notice introduced in evidence failed to meet these requirements. In support of this proposition they cite two cases: Stoors v. Denver, 73 P. 1194; Reno v. St. Joseph, 169 Mo. 642. (2) An examination of these cases will show that the case of Stoors v. Denver, supra, has no application as an authority in this case, as the statute which was construed and the facts in that case are altogether different from the statute in this case, and the opinion in that case was based upon the facts as applicable to that case. The Colorado statute upon which this decision was based required that the notice shall state "fully how the injury occurred," and the court constructed the word "how" to mean the defect in the walk that caused the injury. The Missouri statute simply requires that the notice shall state the "place, time when and the character and circumstances of the injury."

OPINION

JOHNSON, J.

Action for personal injuries alleged to have been received from a fall occasioned by a defective sidewalk. Plaintiff recovered judgment. The notice given defendant as required by section 5724, Revised Statutes 1899, is attacked for insufficiency in failing to specify the circumstances of the injury. It is as follows:

"You are hereby notified that I, Elizabeth Lyons, will institute an action against the city of St. Joseph and others who may be jointly liable for damages by reason of injuries sustained by me on the 5th day of October, 1903. Said injuries were sustained by me while walking upon the sidewalk of said city at the intersection of Dewey avenue and Louis street, and more particularly described as that part of the sidewalk lying and being situate on the southwest corner of lot one, block 23, Robidoux addition to the city of St. Joseph. The nature of said injuries were sprains to the limbs and severe bruises to the body resulting in blood poisoning to the right arm and shoulder, which said injury is likely to remain permanent."

The purpose which prompted the enactment of section 5724 was to put a check upon the prosecution of fictitious and exaggerated claims for damage begun after the obliteration through lapse of time and change in physical condition, of the evidence by which they could be refuted. In furtherance of this purpose a plaintiff is required within sixty days of the occurrence to give the city written notice containing information relative to the claim sufficient to enable a full and accurate investigation to be made respecting its merits. As stated in Reno v. City, 169 Mo. 642, the notice "is intended for the benefit of the city in order to put its officers in possession of the salient facts upon which the claim for damages is predicated, and the place where the injury is alleged to have occurred, in order that they may investigate them and thereby ascertain whether the claim be a just one or fictitious and fraudulent."

The giving of the notice in substantial compliance with the requirements of the statute is a condition precedent to the right to recover. Four points must be covered therein: The time, place and circumstances of the occurrence must be stated, together with the character of the injuries sustained. Actual knowledge of the officers of the city relative to these facts, or any of them, is without effect to dispense with the giving of the notice or with the statement therein of any essential fact. It was held, however, in ...