Quinn v. Graham, 8722
| Decision Date | 29 April 1968 |
| Docket Number | No. 8722,8722 |
| Citation | 428 S.W.2d 178 |
| Parties | Alice QUINN, Plaintiff-Respondent, Lou Quinn, Plaintiff, v. Floyd R. GRAHAM, Catherine L. Graham, Elizabeth Ketcham, George Beimdiek, Agent and Attorney in Fact for Elizabeth Ketcham, Defendants, The City of Carthage, Missouri, a Municipal Corporation, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
James A. Dunn, Ben Pyle, Carthage, for plaintiff-respondent and for plaintiff.
Lourence H. Flanigan, McReynolds, Flanigan & Flanigan, Carthage, for defendant-appellant.
John R. Martin, Joplin, for defendants Graham.
Edward G. Farmer, Joplin, for defendants Ketcham and Beimdiek.
The sole appeal in this cause is by the City of Carthage, a city of the third class (V.A.M.S. Chapter 77), from a judgment entered on a $5,000 jury verdict returned in the Circuit Court of Jasper County in favor of plaintiff Alice Quinn who sought damages because of an accident she is said to have encountered on a public easement. A $1,000 verdict-judgment for her husband on his derivative action was set aside by the trial court for his negligect to give the city any written notice of his claim. V.A.M.S. § 77.600; Dohring v. Kansas City, 228 Mo.App. 519, 71 S.W.2d 170. The other defendants were exculpated by the jury.
Initially the city contends the trial court should have directed a verdict in its favor because the written notice given by Mrs. Quinn 'is legally insufficient and defective under the mandatory provisions of' V.A.M.S. § 77.600 which provides:
'No action shall be maintained against any city organized under the laws of this state as a city of the third class on account of any injuries growing out of any defect or unsafe condition of or on any bridge, boulevard, street, sidewalk or thoroughfare in said city, until notice shall first five been given in writing to the mayor of said city, within ninety days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, and the character and circumstances of the injury, and that the person so injured will claim damages therefor from such city.' 1
The questioned notice follows:
'To: Ralph Rinehart, Mayor
City of Carthage
'Alice M. Quinn, Carthage, Missouri gives notice to the Mayor and the City of Carthage, Jasper County, Missouri, that on November 10, 1965 at about 12:30 P.M. while walking on the sidewalk located on Chestnut Street just West of the intersection of Chestnut Street and River Street, she slipped causing her to immediately fall violently upon the sidewalk.
'Alice M. Quinn states that she was severely injured and specifically her leg was fractured and broken and she received other serious and sever injuries but the full nature and extent of injuries have not yet been determined by attending doctors.
'/S/ ALICE M. QUINN
Alice M. Quinn
'State of Missouri
County of Jasper ss.
'Alice M. Quinn of legal age being duly sworn states that the facts contained in the foregoing notice are true and correct according to the best of her knowledge and belief.
'/S/ ALTICE M. QUINN
'Subscribed and sworn to before me this 10th day of November, 1965.
(SEAL)
'/S/ JAMES A. DUNN
Notary Public
My Commission expires:
Clerk's office, on November 12, 1965.
Plaintiffs' petition was not filed until November 4, 1966, or almost a year after the accident. Therefore it could not, as in Hunt v. City of St. Louis, 278 Mo. 213, 223--224(1), 211 S.W. 673, 676(1), serve as an acceptable substitute for the written notice the statute required to be served within ninety days of the occurrence. The petition averred, inter alia, on the casualty date Defendants were specifically charged with permitting 'the sidewalk and approaches thereto to remain in an unsafe and dangerous condition,' failing to warn plaintiff thereof, and allowing 'a large jagged mound of concrete to remain immediately adjacent to the sidewalk in front of the * * * laundromat.' Defendant city's answer was a general denial coupled with an affirmative pleading that plaintiff Alice Quinn had been contributorily negligent and 'is legally barred from maintaining this action * * * for the reason that said plaintiff failed to give the written notice * * * as required by Section 77.600 VAMS * * * (and) for the reason that the purported notice * * * is legally insufficient and defective under the requirements of Section 77.600 VAMS.'
Exhibits and testimony reveal Chestnut Street to be an east-west avenue which extends west a distance of several blocks from River Street, a north-south thoroughfare. The roadway surface of Chestnut is paved and its north and south boundaries are outlined with curbings. There are paved concreted east-west sidewalks on both the north and south sides of Chestnut extending west from River Street. It was stipulated the 'sidewalk on the north side of Chestnut Street, west of River, (is) similar in appearance' to the sidewalk on the south side of Chestnut. Between the curbs and sidewalks on both sides of Chestnut Street are unpaved areas which are commonly known and referred to by all the witnesses as 'parkways.' Plaintiffs conceded 'the exact place where this occurrence took place is in * * * the 'parkway' between the curb line and the sidewalk.'
The laundromat in question is situate at the southwest corner of the intersection of Chestnut and River. The front door to the building is on the north side thereof adjacent to the south edge of the south sidewalk on Chestnut. For a distance of 'approximately thirty-one feet' west of River Street, both the sidewalk and parkway on the south side of Chestnut are concrete paved. This solidly paved area is in front of the east 3/5ths (our estimate) of the laundromat. West of this paved area the parkway is 'dirt,' and it was in the 'dirt' parkway north of the west side of the laundromat building the white 'concrete mass' was located. The with the ground but the west side extended '2 and 3/4 inches' above ground level.
As far as is known, Mrs. Quinn was the only witness to her fall. She left home 'around noon' in her 'four door sedan,' accompanied only by baskets of laundry and some soap or detergent. Arriving at the laundromat she stopped the car on Chestnut Street 'a little ways' west of the front door 'on the wrong side of the road,' headed west with the left wheels of the automobile 'up against the (south) curb.' Plaintiff testified: 'I got out (of the car via the front door) on the driver's side, which would be the left side, and I stepped onto the parkway * * * (in) the dirt area * * * (and) knew that the parkway was not sidewalk * * * I walked back (east) * * * in the dirt * * * and opened the back door.' She did not recall if she looked 'at the ground,' and her 'attention was not distracted by anything.' As Mrs. Quinn 'reached in to get my laundry' from the back seat she was 'facing the car, which would be north.' She obtained a basket and turned to her right. She 'probably did * * * take some steps' but did not remember taking 'a step backwards toward the south before' turning. Plaintiff subsequently became aware of the existence of the 'concrete mass' in the parkway and designated it as the cause of her tripping and falling. The principal injury sustained by Mrs. Quinn was 'a fracture of the lateral malleolus of her right ankle.'
The only testimony regarding service of the notice, supra, is that the deputy city clerk personally put her 'signature to that paper' and the notation, date and initials 'filed 11/12/65 W.E.F.' were affixed by the city clerk, William E. Fenimore. When the deputy city clerk 'got it (the notice), it was filed there in the office * * * filed in the clerk's office there in the records.'
The septuple requirements of V.A.M.S. § 77.600, supra, are that the notice (1) must be in writing, (2) it must be given to the mayor, (3) within 90 days of the occurrence, and it must contain a statement as to (4) the place where, (5) the time when such injury was received, (6) the character and circumstances of the injury, and a declaration (7) the person so injured will claim damages therefor from the city. Dohring v. Kansas City, supra, 228 Mo.App. at 521, 71 S.W.2d at 171. Giving of the notice in substantial compliance with the requirements of this statute is a condition precedent to the right to maintain the suit and to the right to recover damages (Shuff v. Kansas City, Mo.App., 257 S.W. 844, 846(6); 18 McQuillin--Municipal Corporations, 3rd Ed. Revised, § 53.154, pp. 558--563), and 'the giving of notice is required in every case, regardless of other sources and means of information possessed by the city.' Lyons v. City of St. Joseph, 112 mo.App. 681, 684, 87 S.W. 588.
The apparent rule is that the requirements of the statute that notice must be in writing and given to the mayor within the time specified are to be strictly construed (Cole v. City of St. Joseph, Mo., 50 S.W.2d 623, 624...
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