Randolph v. City of Springfield
| Decision Date | 31 December 1923 |
| Docket Number | 23615 |
| Parties | ZILLAH L. RANDOLPH, Appellant, v. CITY OF SPRINGFIELD |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court; Hon. Orin Patterson Judge.
Reversed and remanded.
A B. Lovan for appellant.
(1) Sec. 8182, R. S. 1919, closes the court against a person who has been injured by the negligence of the city, unless he notifies the mayor within thirty days of the occurrence for which damages is claimed. This violates Section 10 of Article 2 of the Constitution of Missouri. Haggard v Carthage, 168 Mo. 163. In Missouri it has always been held that the right to sue a city for an injury caused by a defect in the street is founded upon the common law, and not upon any statute, and that the city cannot shift or evade the liability. Vogelgesang v. St. Louis, 139 Mo. 135; Hackenyos v. St. Louis, 203 S.W. 999; Bean v. St. Joseph, 211 Mo.App. 210; Morrell v. Kansas City, 179 S.W. 762. Section 8182 is unconstitutional because it is in conflict with the following: Constitution of Missouri, art. 4, sec. 53, par. 31; Louisville v. Kuntz, 47 S.W. 592; Louisville v. Hegan, 49 S.W. 532; Louisville v. Seibert, 51 S.W. 310; Louisville v. McGill, 52 S.W. 1053; Richardson v. Mehler, 63 S.W. 962; Union Central Life Ins. Co. v. Spinks, 83 S.W. 619; Edmunds v. Herbrandson, 14 L. R. A. 727; Henderson v. Koenig, 168 Mo. 372; State ex rel. Harris v. Hermann, 75 Mo. 353; Hamman v. Cen. Coal & Coke Co., 156 Mo. 241; Cooley's Const. Limitations (7 Ed.) p. 556. (3) Section 8182 is unconstitutional because such a short time as thirty days is an unreasonable provision. "Such requirements will not be sustained if they are unreasonable and do not tend to the due administration of justice." 5 McQuillin on Municipal Corp. p. 5124; Durham v. Spokane, 68 P. 386; Born v. Spokane, 68 P. 387. (4) The record shows that appellant, on account of her injury, was unable to notify the mayor until after the thirty days had expired. "Under the ordinary Statute of Limitations it is universally held that the statute does not run against one who is incapacitated from bringing the action; and it would work a miscarriage of justice to hold one who is injured should be barred from collecting meritorious damages by reason of the fact that he was incapacitated from filing his claim until after the time prescribed had expired." Born v. Spokane, 68 P. 387.
Dan M. Nee for respondent.
(1) The provisions, such as this requiring notice to be served upon a city before an action can be maintained, has in this and other states been repeatedly upheld as a condition precedent to the right to maintain an action, and does not deprive the injured person of any vested right, even though his cause of action may have existed at common law. It is to be construed strictly with regard to the notice being given within the time required. 4 Dillon on Mun. Corp. (5 Ed.) 2814, 2815; Durham v. Spokane, 27 Wash. 615, 68 P. 383; Reno v. St. Joseph, 169 Mo. 462; Lyons v. St. Joseph, 112 Mo.App. 681. (2) It does not violate Section 10 of Article 2 of the Constitution of Missouri, in that it closes the courts against persons who have been injured by the negligence of the city. Provisions such as this are incorporated in the charters of various cities in many states and have been repeatedly upheld, although the time varies from thirty to ninety days. Hay v. City of Baraboo, 105 N.W. 660; Postel v. Seattle, 83 P. 1025; Lyons v. Cambridge, 132 Mass. 534; McNulty v. Cambridge, 130 Mass. 275. (3) Said Section 8182, requiring a notice to cities for claims of injuries received in a street is not unreasonable. The notice is required to allow the city to investigate and to prevent the prosecution of fraudulent and exaggerated claims. Carter v. St. Joseph, 152 Mo.App. 503; Anthony v. St. Joseph, 152 Mo.App. 182; Lyons v. Cambridge, 132 Mass. 534; McNulty v. Cambridge, 130 Mass. 275. (4) Section 8182 does not violate Paragraph 31, section 53 of Article 4 of the Constitution. This section is not a special or local law, as it applies to all cities in the State now having, or that in the future may have, a population of not less than 27,500 or more than 75,000. This classification by population clearly brings this section out of the scope of special or local legislation. This is so even where the act would apply to only one city. State ex inf. v. Southern, 265 Mo. 286; State ex inf. v. Cont. Tobacco Co., 177 Mo. 1; State ex rel. v. County Court, 128 Mo. 442; State ex rel. v. Bell, 119 Mo. 70. (5) Even though the right to sue a city is a common-law action, the statute in controversy is subject to the same rule of construction as though the right of action was purely statutory. "The courts cannot ingraft an exception into the statute where the statute makes no exception." Ransom v. South Bend, 136 P. 366; Collins v. Spokane, 116 P. 663. (6) The contention of appellant that because of her injuries she was unable to serve the notice required by statute is untenable. Being incapacitated because of injuries is no excuse for failing to give the statutory notice. The Kansas City Court of Appeals passed squarely on this point, and held there was no exception. Reid v. Kansas City, 195 Mo.App. 464. See also Schmidt v. Fremont, 97 N.W. 830; People v. Valparaiso, 100 N.E. 70; Hoffman v. Milwaukee Ry. Co., 127 Wis. 76; Davidson v. Muskegon, 11 Mich. 454; Ronson v. South Bend, 136 P. 366; Osinceip v. Hsethorn, 46 L. R. A. (N. S.) 174.
Plaintiff sued the city of Springfield for $ 7500 damages for personal injury alleged to have been sustained through the negligence of the city in permitting a sidewalk to become and remain defective. She lost below on demurrer to her petition, because it failed to allege that she gave the city notice required by the statute within thirty days after the accident occurred. The petition, however, contained the following allegations:
The plaintiff standing on her demurrer and refusing to plead further, the court rendered judgment against her, and failing to obtain a new trial, she appealed to this court. In her motion for a new trial, plaintiff alleged, among other things, that the demurrer was sustained for the reason that such petition shows on its face that she failed to notify defendant of the injury sued for within thirty days, as provided for by Section 8182, Revised Statutes 1919. That the plaintiff contends that said section is void because it violates Section 10, Article II, of the Constitution of Missouri. That her petition shows that she was severely injured, and that because of such injury, she was unable to notify defendant sooner than June 29, 1921, which was more than thirty days after the injury, and that the action of the court in construing said Section 8182, and sustaining defendant's demurrer, deprived plaintiff of her rights under said Section 10, Article II, of the Constitution.
I. We think that plaintiff's petition, in effect, alleges that the injuries she sustained for which the suit is brought rendered her unable to notify the mayor sooner than the 29th day of June, 1921. The accident happened April 10, 1921. The petition states that on account of her injuries for more than thirty days she was unable to get away from her home, and that she notified the mayor in writing of the injury on the 29th of June, 1921. That said notice, among other things, stated, "that because of her injury, she had not been able to notify the mayor sooner, and that said notice is attached to and made part of her petition." While the mere attachment of the notice to the petition, and recital in the petition that it was made part thereof, would not make it a part of the petition, still, in this case, the portion of the notice stating that "because of her injury she had not been able to notify the mayor sooner," was set forth in the petition itself and made a part thereof. So that we may assume that there was a sufficient allegation in the petition, that because of the plaintiff's injury sustained on account of the negligence of the city, she was unable to notify the mayor, as required by the statute, within thirty days after the injury was received, and was not able to give such notice until June 29th, the date she gave such notice. Indeed, learned counsel for the city in his brief does not contend to the contrary. So that the question is fairly presented to us whether, under the statute, in view of the constitutional provision referred to by appellant, the disability of the injured party to give the required notice, when caused by the injury sued for, affords an excuse for the plaintiff for not literally complying...
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