Pender v. Ctty Of Salisbury

• Decision Date: 13 November 1912
• Citation: 160 N.C. 363,76 S.E. 228
• Parties: PENDER. v. CTTY OF SALISBURY.
• Court: North Carolina Supreme Court

76 S.E. 228

160 N.C. 363

PENDER.

v.CTTY OF SALISBURY.

Supreme Court of North Carolina.

Nov. 13, 1912.

1. Municipal Corporations (§ 812^*) — Actions — Notice of Claim of Injury—Necessity.

Salisbury City Charter (Priv. Laws 1899, c. 186) § 92, provides that no action shall be maintained against said city upon any claim or demand whatsoever of any kind or character until claimant shall have first presented his claim in writing to the board of aldermen, and the board shall have declined to pay it, or for 10 days after such presentation neglected to enter its determination thereon, and section 93 provides that no action for damages against the city of any character to either person or property shall be instituted, unless within 90 days after the injury complainant or his administrators shall have given written notice to the board of aldermen of such injury. Held, that the statute would include every claim or demand arising against the city, and would require a written notice to the board of aldermen of a claim against it for the death of a fireman by being thrown from a fire wagon by a defective street.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1696-1707: Dec. Dig. § 812.*]

2. Municipal Corporations (§ 812*)—Claims Against City — Personal Injuries — Validity of Statutes.

The provisions of the charter requiring written notice of claims against the city are valid.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1696-1707; Dec. Dig. § 812.*]

3. Statutes (§ 157*) — Repeal — General Laws.

Revisal 1905, § 5453, repealing all "public and general statutes not contained in this revisal, " did not repeal Salisbury City Charter (Priv. Laws 1899, c. 186); the charter not being a general law.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 225, 226; Dec Dig. § 157.*]

4. Municipal Corporations (§ 812*) — Actions for Injury—Claim Against City-Sufficiency.

The fact that the mayor was at the accident at the time intestate was killed by being thrown from a fire wagon because of alleged negligence in maintaining a defective street did not constitute notice of the accident to the city so as to relieve one suing the city for intestate's death from giving written notice of the claim, as required by Salisbury City Charter (Priv. Laws 1899, c. 186) §§ 92, 93, in order to authorize a suit on the claim.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1696-1707; Dec Dig. § 812.*]

5. Municipal Corporations (§ 812*)—Notice of Claim of Demand.

Town authorities cannot waive the city's right to have a written notice given to the board of aldermen of a claim against the city, as required by Salisbury City Charter (Priv. Laws 1899, c. 186) §§ 92, 93, to authorize a suit against the city.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1696-1707; Dec Dig. § 812.*]

Appeal from Superior Court, Forsyth County; Ferguson, Judge.

Action by Banks Pender, administrator of R. H. Pender, against the City of Salisbury. From a judgment for defendant, plaintiff appeals. Affirmed.

John L. Rendleman, of Salisbury, and L. M. Swink, of Winston, for appellant.

Craige & Craige, Stahle Linn, and W. H. Woodson, all of Salisbury, for appellee.

BROWN, J. The evidence shows that plaintiff's intestate was thrown from the footboard of defendant's hose wagon on the night of December 17, 1909, and killed, when going to a fire at a rapid rate. He fell from the wagon at the intersection of two of the principal streets in the center of the city, which had just been surveyed and paved in vitrified brick, with best materials, under the supervision of an expert engineer employed by the city for this purpose. The complaint alleges that the city was negligent, in that it failed to properly construct and maintain its streets, and permitted a depression in its streets at the intersection of Church and Fisher streets. The defendant denies the acts of negligence alleged in the complaint, and sets up contributory negligence, assumption of risk, and that intestate was a trespasser, and further alleges that the city had previous to the accident spent the sum of $200,000, in repairing and building streets and sidewalks, and had employed an expert engineer to map out, survey, and oversee the work and lay out the street; that the intersection of the streets where intestate was injured was one of the streets the city had just built under the supervision of an expert engineer, and was surveyed and built in the most improved manner. The defendant further alleges that neither plaintiff, as administrator of deceased, nor any other person, gave any notice of claim in writing of death of intestate within 90 days after its happening to the board of aldermen of the city of Salisbury, stating the date and place of its hap-

^*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexespening or infliction of the injury, the manner of such infliction, the character of the injury, and the amount of damages claimed, as required by chapter 186, Private Laws of North Carolina Session 1899, §§ 92 and 93, being the charter of the city of Salisbury. Plaintiff neither alleged nor proved that a notice and demand had been made upon the city, as required by its charter.

1. As to the notice of claim. The charter of the city of Salisbury (chapter 186, § 92) provides as follows: "No action shall be instituted or maintained against said city upon any claim or demand whatsoever, of any kind or character, until the claimant shall have first presented his or her claim or demand in writing to said board of aldermen, and said board of aldermen shall have declined to pay or settle the same as presented, or for ten days after such presentation neglected to enter or cause to be entered upon its minutes its determination in regard thereto. The statute of limitations shall not begin to run until the expiration of the ten days from such demand or until refusal by said board to pay such claim, provided such demand shall be made in thirty days from the time the cause of action arose." Section 93: "No action for damages against said city, of any character whatever, to either person or property, shall be instituted against...