Orth v. Village of Belgrade

• Court: Minnesota Supreme Court
• Writing for the Court: START, C.J.
• Citation: Orth v. Village of Belgrade, 87 Minn. 237, 91 N.W. 843 (Minn. 1902)
• Decision Date: 24 October 1902
• Docket Number: 13,119 - (139)
• Parties: MICHAEL ORTH v. VILLAGE OF BELGRADE

91 N.W. 843

87 Minn. 237

MICHAEL ORTH v. VILLAGE OF BELGRADE

Nos. 13,119 - (139)

Supreme Court of Minnesota

October 24, 1902

Action in the district court for Stearns county by plaintiff, as administrator of the estate of Christian Schreiber, deceased to recover $6,000 for the death of decedent. From an order Searle, J., overruling a demurrer to the complaint, defendant appealed. Affirmed.

SYLLABUS

Personal Injury - Notice to City.

Held, following Maylone v. City of St. Paul, 40 Minn. 406, that the provisions of Laws 1897, c. 248, requiring notice to be given to a municipality of injury caused by defects in its streets as a condition precedent to the maintaining of an action therefor, do not apply to an action by the personal representatives of a deceased person, whose death was caused by such defects.

F. Tolman and Calhoun & Bennett, for appellant.

Theo. Breuner and J. D. Sullivan, for respondent.

OPINION

START, C.J.

This is an appeal by the defendant from an order of the district court of the county of Stearns overruling the defendant's demurrer to the complaint herein. The plaintiff is the administrator of the estate of Christian Schreiber, deceased, and brings this action as such to recover damages for the death of his intestate by reason of the alleged negligence of the defendant, a municipal corporation, in the care of one of its streets.

The complaint alleges that the defendant negligently permitted a decayed porch, which was insufficiently fastened, to overhang one of its streets, which, by reason of its defective condition, fell, on July 4, 1901, upon the deceased, while he was lawfully upon the street, whereby he sustained injuries resulting in his death on September 16 thereafter. But it fails to allege that any notice, as provided by Laws 1897, c. 248, was served by him, or on his behalf, upon the defendant. This presents the sole question for our decision on this appeal, viz.: Can an administrator maintain an action against a municipality for the death of his intestate by reason of defects in its streets, where the deceased failed to give the notice required by the statute, although he lived more than thirty days after the accident which caused his death?

It is the confident contention of counsel for the plaintiff that the question is answered in the affirmative by the case of Maylone v. City of St. Paul, 40 Minn. 406, 42 N.W. 88. Counsel for the defendant with equal confidence insist that the case has no relevancy to the question, for that case, neither in its facts nor the statute construed, is similar to the one at bar. That case was one by the administrator to recover damages for the death of his intestate, alleged to have been caused by the negligence of the city. A demurrer to the complaint was sustained in the district court on the ground that the action was barred by reason of a provision of the city charter, which was this:

"No action shall be maintained against the city of St. Paul, on account of any injuries received by means of any defect in the condition of any bridge, street, sidewalk or thoroughfare, unless such action shall be commenced within one year from the happening of the injury, or (nor) unless notice shall have first been given in writing to the mayor of said city, or the city clerk thereof within thirty days of the occurrence of such injury or damage, stating the place where and the time when such injury was received and that the person injured will claim damages of the city for such injury; but the notice shall not be required when the person injured shall in consequence thereof be bereft of reason." Sp. Laws 1885, c. 7, § 19.

Laws 1897, c. 248, here in question, is, so far as here material, as follows:

"Before any city, village or borough in this state shall be liable to any person for damages for, or on account of, any injury or loss alleged to have been received or suffered by reason of any defect in any * * * street, * * * the person so alleged to be injured, or some one in his behalf, shall give to the city or village council, * * * within thirty days after the alleged injury notice thereof, and shall present his or their claim to compensation to such council * * * in writing, * * * and such body shall have ten days' time within which to decide upon the course it will pursue with relation to such claim, and no action shall be maintained until the expiration of such time on account of such claim nor unless the same shall be commenced within one year after the happening of such alleged injury or loss."

The statute giving a cause of action to the personal representative of a deceased party was then the same as it is now, and was and is in these words:

"When death is caused by the wrongful act or...