Penix v. City of St. Johns

• Decision Date: 13 October 1958
• Docket Number: No. 5,5
• Citation: 354 Mich. 259,92 N.W.2d 332
• Parties: Betty PENIX, Plaintiff and Appellee, v. The CITY OF ST. JOHNS, a municipal corporation of Clinton County, Michigan, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 332

92 N.W.2d 332

354 Mich. 259

Betty PENIX, Plaintiff and Appellee, v. The CITY OF ST. JOHNS, a municipal corporation of Clinton County, Michigan, Defendant and Appellant.

No. 5.

Supreme Court of Michigan.

Oct. 13, 1958.

Timothy M. Green, St. Johns, for appellant.

Frederick M. Lewis, St. Johns, for appellee.

Before the Entire Bench.

DETHMERS, Chief Justice.

Defendant city appeals, on leave granted, from denial of its motion to dismiss. The motion was based on two grounds: (1) that as appears from the allegations of plaintiff's declaration timely notice of her claim was not presented to the city commission, as required by the city charter, and (2) that her declaration alleges damages resulting from the negligence of defendant's employees in performance of a governmental function. Pertinent provisions of the declaration follow:

'2. That the defendant, The City of St. Johns, is a municipal corporation located in Clinton County, Michigan, whose corporate authority extends over a certain municipal park within the confines of its corporate limits. That such said City Park is under the custody and control of the City of St. Johns, and is operated by City employees.

'3. That on or about the 24th day of July, 1955, plaintiff, while attending a softball game at said park, utilized certain bleachers situated next to the ball field. That due to a defect in erecting said bleachers, or keeping them in repair, the bleacher gave way beneath the plaintiff, causing her to fall to the ground, first striking her head against another board in the bleachers, in her descent.

'4. That it was the duty of the defendant to keep said bleachers in reasonable repair and reasonably safe and fit for public use; the defendant's employees being the persons who moved, disassemble, and erect the said bleachers, keep them in a state of repair, and inspect them.

'5. That as a result of said defect, and the defendant's inability to keep said bleachers in a state of repair to reasonably assure the safety of the public using them, the defendant suffered a severe blow and traumatic injury to the base of her skull, impairment to her nervous system to an extent that she was unable to be gainfully employed, carry on household duties as a wife and mother, and was in fact, an invalid for a period of several months.

'6. That within sixty days thereafter, and on or about the 26th day of July, 1956, plaintiff, through her husband, served due notice upon the City Manager of the City of St. Johns, of the extent of the injury and her intention to claim damages thereof, in accordance with the ordinance and statute made and provided, and under the control and direction of the City Manager of the City of St. Johns, Michigan, the defendant herein.'

On the first point, it is defendant's contention that service of the notice of claim upon defendant's city manager did not comply with the city charter requirement that the claim be presented to the city commission and that such failure is fatal to plaintiff's suit, citing Selden v. Village of St. Johns, 114 Mich. 698, 72 N.W. 991; Van Auken v. City of Adrian, 135 Mich. 534, 98 N.W. 15; Ridgeway v. City of Escanaba, 154 Mich. 68, 117 N.W. 550; Moulthrop v. City of Detroit, 218 Mich. 464, 188 N.W. 433; Kelley v. City of Flint, 251 Mich. 691, 232 N.W. 407; Northrup v. City of Jackson, 273 Mich. 20, 262 N.W. 641; Harrington v. City of Battle Creek, 288 Mich. 152, 284 N.W. 680; Sykes v. City of Battle Creek, 288 Mich. 660, 286 N.W. 117; Grand Trunk Western Railroad Co. v. City of Detroit, 342 Mich. 537, 70 N.W.2d 925. None of these cases presented the question, before us here, whether service of the claim upon the city manager complies with the requirement of presenting it to the city commission. In Ridgeway v. City of Escanaba, supra, this Court said that substantial compliance with the requirement for service of such notice of claim is sufficient. We do not believe the language of the charter should be construed to require that the claim be handed to members of the Commission individually or presented to that body while they are assembled in official meeting. The city's charter (p. 11) provides that the powers and duties of the city manager shall be, inter alia, 'To have general supervision over all public improvements, works and undertakings * * *' and 'To attend all meetings of the city commission, with the right to take part in the discussions * * *'. One might reasonably assume that a claim of the kind in question served on the city manager would be presented and come to the attention of the city commission. We think that this amounted to substantial compliance with the charter requirement and that plaintiff's case ought not to fail for the reasons...