Ogle v. Kansas City

• Citation: 242 S.W. 115
• Decision Date: 12 June 1922
• Docket Number: No. 14377.,14377.
• Parties: OGLE v. KANSAS CITY.
• Court: Court of Appeal of Missouri (US)

242 S.W. 115

OGLE v. KANSAS CITY.

No. 14377.

Kansas City Court of Appeals. Missouri.

June 12, 1922.

Appeal from Circuit Court, Jackson County; Thad B. Landon, Judge.

"Not to be officially published."

Action by Eliza Jane Ogle against the City of Kansas City. Judgment for plaintiff, and defendant appeals. Affirmed.

E. M. Harber and Francis M. Hayward, both of Kansas City, for appellant.

Harry G. Kyle, of Kansas City, for respondent.

TRIMBLE, P. J.

This is an action for damages received from a fall on a city sidewalk. It was composed of boards laid crosswise of the walk, and they had been allowed to become and remain loose from the stringers to which they had been originally fastened. Plaintiff was proceeding along the walk with a companion, who was walking beside her. This companion stepped upon one of the loose boards, and was weight caused the other end to fly up, tripping and throwing plaintiff heavily to the ground, seriously and permanently injuring her right knee, and also injuring her in her right side.

Upon a trial of the case, the jury returned a verdict for plaintiff in the sum of $5,000, which the trial court, by an enforced remittitur, reduced to $3,500. The city appealed.

At the oral argument of the case in this court, defendant abandoned two of the three points presented in the briefs, and submitted the appeal upon one point only, to wit, the claimed insufficiency of the written notice which the statute (section 8904, R. S. 1919) requires. The notice was in writing, was given in proper time, and was served upon the proper officer, the mayor. Only in one respect does appellant attack the notice, and that is because it does not expressly, or in so many words, state that the person so injured will claim damages from the city.

The rule is that, as to the requirement of a notice as a condition precedent to the maintenance of the action, the statute is to be strictly construed; but, where a notice has been given, its sufficiency under the statute is a remedial matter, and should be liberally construed. 28 Cyc. 1450. To be valid as a condition precedent to an action, it is essential that the prescribed notice, as to its form and contents, should at least substantially comply with the statute. Being for the benefit of the municipality, in order to put its officers in possession of the facts upon which the claim for damages is predicated, and the place where the injuries are alleged to have occurred, in order that they may investigate them and adjust them without litigation, a reasonable or substantial compliance with the terms of the statute is all that is...