O'neil v. City Of Richmond

• Citation: 126 S.E. 56
• Parties: O'NEIL v. CITY OF RICHMOND.
• Decision Date: 05 November 1925
• Court: Supreme Court of Virginia

126 S.E. 56

O'NEIL

v.CITY OF RICHMOND.

Supreme Court of Appeals of Virginia.

Jan.15, 1925.

Error to Law and Equity Court of City of Richmond.

Suit by Kate O'Nell, executrix of Owen O'Nell, deceased, against the City of Richmond. From an order of the trial justice and of the trial court on appeal dismissing the warrant, plaintiff brings error. Affirmed.

Sands, Williams & Lightfoot, of Richmond, and H. S. Burnett, of Knoxville, Tenn., for plaintiff in error.

James E. Cannon, of Richmond, for defendant in error.

PRENTIS, J. The plaintiff in error sued out a warrant against the city of Richmond, alleging negligence and resulting damages to certain real estate inundated by defective water pipes owned and operated by the city of Richmond.

The defendant moved the dismissal of the warrant because no verified written statement of the claim had been furnished the city attorney within six months of the injury complained of, relying upon the requirement of section 19g of the charter of the city, as amended Acts 1918, p. 182. This motion was sustained, first by the trial justice, and then by the trial court on appeal, and the plaintiff is here assigning error.

The provision to be construed reads thus:

"No action shall be maintained against the said city for damages for an 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, of the nature of the claim and of the time and place at which the injury is alleged to have occurred or been received shall have been filed with thecity attorney of said city within six months after such cause of action shall have accrued."

It is admitted that the notice required by this statute was not given.

1. The validity of this provision is attacked as inapplicable to the plaintiff's claim upon the ground that the wrong complained of was done by the city in its private and not its governmental capacity, and therefore, that the city is liable just as an individual or a private corporation would be.

There are many cases involving such statutes, and there is little conflict in the decisions. Such differences as exist arise only out of the construction of different statutes.

The general rule is thus clearly and succinctly stated in 19 R. C. L. § 329, p. 1040:

" * * * It is undoubtedly within the power of the Legislature to impose such a requirement, and it is not a violation of the constitutional rights of the injured party or an unwarranted discrimination between municipal and private corporations to require the giving of notice within a limited period, or the presentation of a claim to the municipal authorities as a condition precedent to an action at law, or to an action at law of a certain class, against a municipal corporation, provided such requirement be not unreasonable."

The cases there cited fully sustain this comprehensive statement.

In 6 McQuillin on Mun. Corp. § 2714, it is said that such provisions are construed as mandatory, a condition precedent to the right to sue, and are universally upheld. 28 Cyc. p. 1447.

The support, so far as we are advised, for the distinction claimed, is suggested by the cases of D'Amico v. Boston, 176 Mass. 599, 58 N. E. 158, where the language of the statute is not given, and Henry v. City of Lincoln, 93 Neb. 331, 140 N. W. 664, 50 L. R. A. (N. S.) 174. These cases appear to stand alone, and in the latter case there was a strong dissenting opinion. Generally, the courts have made no reference to such a distinction, but have confined themselves to construing the particular statute involved.

The supremacy of the General Assembly in all respects, save as limited by the Constitution, is certainly well settled. Town of Danville v. Pace, 25 Grat. (66 Va.) 9, 18 Am. Rep. 663; Whitlock v. Hawkins, 105 Va. 248, 53 S. E. 401; Button v. State Corporation Commission, 105 Va. 634, 54 S. E. 769. Certainly this power may be exercised as to municipal corporations. They are created by law, all of their powers are derived from the statutes creating them, and all of their liabilities are thereby imposed. White v. Nashville, 134 Tenn. 688, 185 S. W. 721, Ann. Cas. 1917D, 961.

The reasons for these statutes 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 thus better to safeguard against unfounded claims. Tonn v. City of Helena, 42 Mont. 127, 111 P. 715, 36 L. R. A. (N. S.) 1136; Weisman v. New York, 219 N. Y. 178, 114 N. E. 70, Ann. Cas. 1918E, 1023.

In this case there is emphasis upon the fact that this injury is alleged to have occurred from the negligence of the city in connection with the water supply which is maintained by it. The case of Frasch v. New Ulm, 130 Minn. 41, 153 N. W. 121, L. R. A. 1915E, 749, was a case in which the action was based upon illness caused by the use of contaminated water negligently supplied from waterworks owned and operated by the city. The point was there made that the requirement of notice under that statute should be confined to actions involving or pertaining to the public or governmental functions of the city, and not to cases of private endeavor which it might enter upon, such as the maintenance of water works, etc. The court, however, declined to sustain that contention, and interpreted the statute as applicable.

The case of Henry v. Lincoln, supra, is referred to in the opinion, and it is said that that decision turns upon an interpretation of the Nebraska statute, and not upon any constitutional limitation on the power of the Legislature.

Condon v. Chicago, 249 111. 596, 94 N. E. 976, also either ignores or declines to apply this limitation.

Of the power to impose such conditions there can be no fair question, and the proper inquiry in such cases is as to the true construction of the statute under review. Berger v. Salt Lake City, 56 Utah, 403, 191 P. 233, 13 A. L. R. 10; Sheehy v. City of New York, 160 N. Y. 143, 54 N. E. 749.

In Curry v. City of Buffalo, 135 N. Y. 366, 32 N.E. 80, this is said as to a similar charter provision:

"The action cannot be maintained unless notice of the intention to commence it, and of the time and place of the injury 'shall have been filed with the counsel to the corporation, ' and a failure to file the notice furnishes a defense to the action. The filing of the notice is a condition precedent to the maintenance of the action. * * * The whole matter of the maintenance of this class of actions was withinthe control of the Legislature. It could refuse a right of action against municipalities for such injuries, and it could impose any conditions precedent to the maintenance of such actions."

And in MacMullen v. City of Middletown, 187 N. Y. 37, 79 N. E. 864, 11 L. R. A. (N. S.) 391, it is said, with reference to the Curry Case, that:

"This statement of the rule was deliberate and, in my opinion, it is correct, when the nature and functions of municipal corporations are considered."

We conclude, then, that the mere fact that the negligence is alleged to have...