Nesbit v. The City of Topeka

• Court: Kansas Supreme Court
• Writing for the Court: BENSON, J.:
• Citation: Nesbit v. The City of Topeka, 124 P. 166, 87 Kan. 394 (Kan. 1912)
• Decision Date: 08 June 1912
• Docket Number: 17,683
• Parties: IVA C. NESBIT, Appellee, v. THE CITY OF TOPEKA, Appellant

124 P. 166

87 Kan. 394

IVA C. NESBIT, Appellee, v. THE CITY OF TOPEKA, Appellant

No. 17,683

Supreme Court of Kansas

June 8, 1912

Decided January, 1912.

Appeal from Shawnee district court, division No. 2.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

NEGLIGENCE--Wrongful Death--Notice--Action by Widow. A person injured by the negligence of a city failed to give a notice as required by the act governing cities of the first class. (Gen. Stat 1909, § 1218.) He died from such injuries after the time limited for such notice had expired. His widow gave a notice within four months after his death, and then commenced an action under the statute giving a right of action for damages for death caused by wrongful act. It is held that the action may be maintained, notwithstanding the failure of the injured person to give the preliminary notice within four months after the injury.

W. C. Ralston, city attorney, and James W. Clark, assistant city attorney, for the appellant.

Edwin D. McKeever, for the appellee; D. Basil Rankin, of counsel.

OPINION

BENSON, J.:

The question to be decided in this case is whether a notice as provided by section 1218 of the General Statutes of 1909 is a condition precedent to the maintenance of an action for damages for death caused by the wrongful act or omission of another under the provisions of section 419 of the civil code, the death having occurred more than four months after the injury. A demurrer to a petition alleging such negligence and resulting death, but failing to allege the notice referred to, was overruled, and the defendant appeals.

The statute relating to notice declares:

"No action shall be maintained by any person or corporation in any court for damages on account of injury to person or property unless the person or corporation injured or damaged shall, within four months thereafter, and prior to the bringing of the suit, file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received, and the circumstances relating thereto." (Gen. Stat. 1909, § 1218.)

This statute is mandatory, and in a case within its purview if the notice is not given an action can not be maintained by the person sustaining the injury. (Cook v. Topeka, 75 Kan. 534, 90 P. 244.)

The statute under which this action is brought provides:

"When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission." (Civ. Code, § 419.)

A later statute allows the widow to maintain the action in her own name in cases like the present. (Civ. Code, § 420.) The damages recoverable by a widow in such an action are for her loss caused by the death of her husband. A cause of action accrued to him when he was injured. A cause of action accrued to her at his death. (Railway Co. v Martin, 59 Kan. 437, 438, 53 P. 461; Louisville & St. Louis Railroad v. Clarke, 152 U.S. 230, 238.) She was not the person injured and so was not required to give the notice provided by the statute within the four months' period. Before her right of action accrued the time for giving it had elapsed. A construction that would bar the widow in such a situation should not be given unless imperatively required. It is said that it is required by the express terms of the statute giving the remedy; that the action can only be maintained by the widow "if the former (the person injured) might have maintained an action had he lived, . . . for the same act or omission" (Civ. Code, § 419); and...