Randolph v. City of Springfield

• Decision Date: 01 September 1925
• Docket Number: No. 3833.,3833.
• Parties: RANDOLPH v. CITY OF SPRINGFIELD.
• Court: Missouri Court of Appeals

275 S.W. 567

RANDOLPH v. CITY OF SPRINGFIELD.

No. 3833.

Springfield Court of Appeals. Missouri.

September 1, 1925.

Rehearing Denied September 23, 1925.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Zellah L. Randolph against the City of Springfield. Judgment for plaintiff, and defendant appeals. Reversed.

Dan M. Nee, of Springfield, for appellant.

A. B. Lovan, of Springfield, for respondent.

BAILEY, J.

Plaintiff's suit is for damages for personal injuries alleged to have been sustained by reason of defendant's negligence in permitting a sidewalk on a public thoroughfare in the city of Springfield to be and remain out a repair. A jury found the issues in favor of plaintiff, and the judgment was for $1,000, from which defendant has appealed.

[1, 2] The chief contention in this case relates to the alleged failure of plaintiff to serve upon the mayor of the city a written, verified notice, stating the time, place, circumstances, and character of the injuries within 30 days of the occurrence for which damages are claimed, as provided by section 8182, R. S. Mo. 1919. The petition states that plaintiff served such a notice on the mayor, which notice contained the further statement that "because of her injury, she has not been able to notify the mayor sooner; that the injury occurred on the 10th day of April, 1921, and the notice was served on the mayor on the 29th day of June, 1921." The petition was filed August 27, 1921, to which defendant demurred on the ground that notice was not served within 30 days of the occurrence for which damages were claimed, as provided by section 8182, R. S. Mo. 1919. Plaintiff, in opposing the demurrer, attacked the constitutionality of said section. The trial court sustained the demurrer, and upon appeal to the Supreme Court the cause was reversed and remanded. Randolph v. City of Springfield, 302 Mo. 33, 257 S. W. 449, 31 A. L. R. 612. In considering the law in question, our Supreme Court ruled as follows:

"We therefore hold that said section 8182 did not require the 30 days' notice therein provided for to be given, if the injured party was so disabled by the injury complained of as to be incapacitated from giving such notice during said 30 days, and that, if the notice is given within a reasonable time, not exceeding 30 days, after the disability to give the notice is removed, this will be sufficient to comply with said statute."

Counsel for appellant points out that the Supreme Court failed to define what is meant by incapacity. The Supreme Court had for consideration only the question of the constitutionality of the section invoked, and therefore had no occasion to pass on what might constitute incapacity. It is a question of fact, to be established as any other element of plaintiff's case, for which no welldefined rule has been laid down. The statute in question does not require the injured party to give the notice therein specified in person, or that such notice be signed or the affidavit made by said party; but, in so far as the statute is concerned, the notice may be prepared, signed, verified, and served by any person at the request of, and for, such person. The trial court so instructed the jury, and further instructed that:

"It is plaintiff's duty to give notice in this manner, if she was not incapacitated by the injury from doing so."

We regard that instruction as proper, and believe it may be stated as a general rule that, in order to excuse the person injured from giving the notice within the time required by section 8182, it must be shown there is such incapacity, physical or mental, as to make it reasonably impossible for the injured person to serve the notice or procure it to be served within such time. Terrell v. Washington, 158 N. C. 281, 73 S. E. 888; Born v. Spokane, 27 Wash. 719, 68 P. 380; Ehrhardt v. Seattle, 33 Wash. 664, 74 P. 827; Webster v. Beaver Dam (O. O.) 84 F. 280; Hungerford v. Waverly, 125 App. Div. 311, 109 N. Y. S. 438; Forsyth v. Oswego, 191 N. Y. 441, 84 N. E. 392, 123 Am. St. Rep. 605; Hartsell v. Asheville, 166 N. C. 633, 82 S. E. 946. In the foregoing cases, the statute contained no provision as to incapacity being an excuse. The rule in Massachusetts, where the statute does contain such provision, is to the same effect. Mitchell v. Worcester, 129 Mass. 525; Lyons v. Cambridge, 132 Mass. 534.

It now becomes necessary to review plaintiff's evidence relevant to the issue of incapacity, and, if there is any substantial evidence to support the judgment, it will not be disturbed. Sparks v. Jasper County, 213 Mo. 218, 112 S. W. 265; Weller v. Wagner, 181 Mo. 151, 79 S. W. 941. According to plaintiff's testimony, she was in a delicate condition at the time of the accident. After relating how the accident occurred, she testified as follows:

"Mr. Randolph assisted me on the street car, but I could have gotten off the car alone, but he helped me to get off, and helped me to the house. He helped me on the car, and helped me get off. I went to bed when we got home, but I did not call the doctor that night. I got a great deal worse. I thought I had strained my hip. I was awful shaken up. The next morning I was sore and felt bad. I stayed just about in the same condition all the next day, until about 8:30 or 9 o'clock that night, I had pains and began flowing; then I had Dr. Leslie Webb call. He was there just a few minutes after I called him. He made an examination. He did what would be expected in a case of that kind. I told him I had had a fall, and he asked me what caused it. I don't believe I told him where I fell. I don't remember. I was able to talk, and could tell him the details of the accident. My mind was active, and I knew what I was doing. I was not mentally incapacitated, and could explain to anyone what was the cause of the injury. I explained to Dr. Webb that I had fallen. I answered his questions readily, when he asked about my different symptoms, and explained to him and told him what they were. He took care of me and did what he could. He examined me and gave me medicine. He did what he could for me that night and came back the next morning. I was getting along as well as could be expected the next morning, and was running some temperature, and he said, if I didn't get better by the next day or so, he would have to take me to a hospital. I got better. Dr. Webb did not call to see me any more after the morning after the accident. He made two calls, one on the night of the 11th and one on the morning of the 12th; the last call was two days after the accident.

"During the time I was in bed, on account of this injury, my husband was at home, when he was not at work. My daughter was also there. Mrs. McClernon came in and took care of me; she was there every day; she was just in and out; she was doing the housework at home, and when she had done her work at home, she would come over every day. She was just a good neighbor to me. I did not pay her anything for her services. I told her about the accident, how it happened, where it happened, and when it happened. She came over the next morning; it was then that I told her. Mrs. McClernon did not stay with me all the time after the first day. I did not need attention all the time after the first day. Mr. Randolph stayed at home a few days; I don't know how many. I don't remember how long after the accident it was that I could get out. I couldn't tell the exact day. It was longer than two weeks. I didn't sit up any for two weeks, and it was cold, and we kept a fire part of the time. I could sit out on the porch, if they took a chair out there for me, after two or three weeks. * * *

"I couldn't tell you the exact date that I decided to file suit against the city; it was before I got up. I thought, if I didn't get straightened up—that was before I got up. I don't remember the exact date that I first saw a lawyer. Mr. Fulbright took me to see him. It was in June, I think. Mr. Randolph had consulted with an attorney before that time, and talked to an attorney about the case. I don't remember when that was. This was after I got out of bed. I could sit up. I told my attorney about the same thing that I told the jury here. I remember of signing a notice over here; it was...