McCulley v. City of Princeton
| Decision Date | 04 December 1972 |
| Docket Number | No. 25941,25941 |
| Citation | 488 S.W.2d 277 |
| Parties | Charles J. McCULLEY and Phyllis McCulley, Appellants, v. The CITY OF PRINCETON, Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Wilbur L. Pollard, Wm. Harrison Norton, Norton & Pollard, Kansas City, for appellants.
Phil Hauck, Terry M. Evans, Pickett, Andereck, Hauck & Sharp, Trenton, for respondent.
A single issue is raised by this appeal. Does Section 79.480 requiring notice to a city of the 4th class within 90 days for 'injuries' growing out of a 'defect' or 'unsafe' condition of 'street, sidewalk or thoroughfare' apply to a claim for property damage arising from a clogged sewer installed under a city street?
Plaintiff pleaded that the defendant 4th class city negligently permitted a public sewer to 'back-up' into the basement of plaintiffs' home causing property damage. The city filed a motion setting up the failure of plaintiff to comply with Section 79.480 which reads in relevant part as follows:
'No action shall be maintained against any . . . city of the fourth class on account of any injuries growing out of any defect or unsafe condition of or on any bridge, boulevard, street, sidewalk or thoroughfare, in said city until notice shall first have been given in writing to the mayor of said city, within ninety days of the occurrence for which said damage is claimed, . . .' (Emphasis supplied.)
Plaintiff concedes no notice was given. The court below sustained the city's motion and plaintiff appeals.
We commence by observing that neither this statute nor any of its counterparts relating to cities of the various classifications has ever been construed by the courts on the issue here presented.
We note also that the courts have repeatedly held that the statute will be construed liberally in favor of the injured person and strictly against the municipality so far as the content of the notice is concerned. Gershon v. Kansas City, 341 S.W.2d 374 (Mo.App.1960), l.c. 376; David v. City of St. Louis, 339 Mo. 241, 96 S.W.2d 353 (1936), l.c. 356; Glasgow v. City of St. Joseph, 353 Mo. 740, 184 S.W.2d 412 (1944).
In Glasgow, supra, the rule is stated, l.c. 415, 'As to plaintiffs within its provisions the statute is in derogation of the common law and is construed liberally in their favor and strictly against the municipality.' Because of its nature in restricting the common law cause of action it should be given no broader application than is warranted by its...
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Williams v. City of Kansas City, 71887
...Section 82.210 does not apply to defective steps and no notice is required. For support, Williams relies on McCulley v. City of Princeton, 488 S.W.2d 277 (Mo.App.1972), in which the court determined that a notice of claim statute does not apply to injuries arising from a defect in a sewer a......
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Jones v. City of Kansas City, Mo, WD56390
...include an action for injuries arising out of any defect or unsafe condition of or on a grate." Id. at 272. In McCulley v. City of Princeton, 488 S.W.2d 277, 278 (Mo. App. 1972), the court said, "we do not believe that Section [82.210] can be read as embracing a sewer . . . The only fact ev......
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Banks v. City of Kansas City, WD
...extend the scope of the statute to include an injury sustained as a result of a fall in an opened grate. See also McCulley v. City of Princeton, 488 S.W.2d 277 (Mo.App.1972) (finding statute not applicable to claim for property damage arising from clogged sewer under Appellant, in her petit......
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Lemming v. City of Salisbury
...statute would not be applied to the city. Id. This court again limited the application of the notice statute in McCulley v. City of Princeton, 488 S.W.2d 277 (Mo.App.1972). The plaintiffs pleaded that the defendant fourth-class city negligently permitted a public sewer to back up into the b......