Mercer v. City Of Richmond

• Decision Date: 13 June 1929
• Citation: 148 S.E. 803
• Parties: MERCER. v. CITY OF RICHMOND.
• Court: Virginia Supreme Court

148 S.E. 803

MERCER.

v.CITY OF RICHMOND.

Supreme Court of Appeals of Virginia.

June 13, 1929.

[Ed. Note.—For other definitions, see Words and Phrases, First, Second, and Third Series, Cause of Action; Right of Action.]

Error to Law and Equity Court, Part 2, of City of Richmond.

Action by J. Herbert Mercer, as administrator of the estate of Mrs. Adelaide C. Young, deceased, against the City of Richmond.

From a judgment of dismissal, plaintiff brings error. Reversed and remanded.

A. W. Patterson, of Richmond, for plaintiff in error.

James E. Cannon, City Atty., and Lucius F. Cary, Asst. City Atty., both of Richmond, for defendant in error.

CHICHESTER, J. The question presented by this writ of error is whether the trial court erred in sustaining a demurrer to the declaration and in dismissing the action.

The answer to this question involves a construction of section 19g of the Richmond City Charter as amended (Acts 1926, p. 533, c. 318). Section 19g provides: "No action shall be maintained against the said city for damages for any injury to any person or property alleged to have been sustained by reason of the negligence of the city, or of any officer, agent or employee thereof, unless a written statement, verified by the oath of the claimant, his agent or attorney, or the personal representative of any decedent whose death is the result of the alleged negligence of the city, its officers, agents or employees, of the nature of the claim and the time and place at which the injury is alleged to have occurred or been received, shall have been filed with the city attorney of said city within sixty days after such cause of action shall have accrued, and no officer, agent or employee of the city shall have authority to waive such conditions precedent or any of them."

The facts, as they appear from the declaration which on demurrer are conceded to be true are that on April 26, 1927, Mrs. Adelaide C. Young, a resident of the city of Richmond, while walking along Laburnum avenue, at a point between Lamont and Gloucester streets, in Richmond, stepped into a hole in the sidewalk, was violently thrown to the pavement, and suffered a fractured hip. She was taken to St. Luke's Hospital, and remained there under treatment for some six weeks or more, and was later removed to her home in Laburnum Park. While at St. Luke's Hospital, and within CO days from the date of the accident, Mrs. Young gave notice thereof to the city attorney, as provided by section 19g, above set out. Thereafter, on the 10th day of August, 1927, she departed this life in consequence of the injuries received from this accident.

J. Herbert Mercer, sheriff of the city of Richmond, having qualified on October 10th, as administrator upon the estate of the decedent, instituted this action to the Second October rules, 1927, claiming damages in the sum of $10,000, based upon the negligence of defendant whereby her injuries and death were brought about.

On March 27, 1928, defendant, by leave of court, filed a demurrer, and also a plea inbar to plaintiff's declaration. The demurrer rested upon the ground that the declaration did not allege the giving of statutory notice, as contemplated by the charter of the city. Whereupon, by leave of court, the plaintiff amended his declaration by stating ''that the said Adelaide C. Young, under date of May 23, 1927, gave notice of said accident to the said defendant, according to law." Counsel for defendant then demurred to the declaration as amended, assigning as reason for such demurrer that J. Herbert Mercer, as administrator, had not given notice of the accident within 60 days after his qualification on Mrs. Young's estate, and that the notice alleged in the amended declaration to have been given by plaintiff's intestate does not comply with the requirement of the ordinance.

The order complained of 'here concluded: "It seems to the Court that said declaration as amended is not sufficient in law for the plaintiff to have and maintain his action against the said defendant, and the demurrer is sustained."

The question at issue therefore is whether or not after notice of an accident and injury had been given in due time by the injured party, who later died as a result of her injuries, the personal representative of the decedent must give another notice of the accident, though more than 60 days may have elapsed, before he can maintain his action against the city.

The trial court held that the additional notice was necessary, and its action in so holding is assigned as error.

Prior to March 6, 1918, there was no requirement that persons injured through alleged negligence of a city should give notice to the city of the accident as a condition precedent to bringing action.

By the original act a period of six months was allowed in which to give notice of the claim, and such notice was to be given by the "claimant, his agent, or attorney." By act approved March 24, 1926 (Acts 1926, p. 533, c. 318), the period for giving this notice was reduced to 60 days, and extended to "the personal representative of any decedent, whose death is the result of the negligence of the city."

The object of the statute is very clearly stated by Chief Justice Prentis in O'Neil v. City of Richmond, 141 Va. 168, 126 S. E. 56. We quote syllabus 6 of 141 Va. 168 (126 S. E. 56), which is fully supported by the text of the opinion: "The reasons for statutes requiring notice of claim to be given municipalities before action have been frequently indicated. They afford the city authorities the opportunity to investigate the circumstances, examine the locality in which the injury is alleged to have occurred, and to discover the witnesses promptly so as to ascertain the facts while their recollections are fresh. Such statutes tend to discourage and avoid the expense of litigation, because if the investigation discloses legal liability a prompt settlement is both proper and probable. They also tend to prevent perjury and fraud as well as to avoid injustice growing out of the failure of the witnesses to recollect clearly occurrences long past before they are called upon to testify and 1hus better to safeguard against unfounded claims."

Bowles v. City of Richmond, 147 Va. 720, 120 S. E. 489, 133 S. E. 593, is to the same effect. So far as the courts have spoken therefore the reasons given for statutes requiring notice are summarized as follows: To afford the city authorities opportunity to investigate the circumstances, examine the locality in which the injury occurred, to discover witnesses promptly while their recollections are fresh, and thus to prevent perjury and fraud, as well as to avoid injustice growing out of failure of witnesses to recollect clearly occurrences long past. These reasons for the existence of such statutes are emphasized by the fact that the Legislature has limited the time of giving such notice to within 60 days after the cause of action arose. Prior to March 24, 1920, the limit for giving notice was 6 months, and the reduction in time clearly shows that the Legislature recognized the importance of early notices to promote the objects of the statute.

As originally drafted the statute did not provide for notice by an administrator of a person who died as a result of injury due to an alleged negligent act of the city,...