Ray v. City of Council Bluffs
| Decision Date | 04 April 1922 |
| Docket Number | No. 34424.,34424. |
| Citation | 187 N.W. 447,193 Iowa 620 |
| Parties | RAY v. CITY OF COUNCIL BLUFFS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Pottawattamie County; J. B. Rockafellow, Judge.
Action to recover damages for personal injuries alleged to have been sustained by a fall on an icy sidewalk in the city of Council Bluffs, Iowa. Verdict of the jury finding for the plaintiff in the sum of $3,500, and judgment entered accordingly. Defendant appeals. Affirmed.V. A. Morgan, of Council Bluffs, for appellant.
W. R. Green and J. A. Williams, both of Council Bluffs, for appellee.
DE GRAFF, J.
The petition of plaintiff alleges that on January 6, 1919, he slipped upon rough ice and frozen snow on the sidewalk at the northeast corner of Stutsman and Pierce streets, in Council Bluffs, Iowa, “injuring his hip and groin, and producing a double inguinal hernia, which injuries are permanent in character.”
It is further alleged that the defendant city was negligent in permitting the drainage from the residence located at said corner to run over and upon the walk at the place where plaintiff was injured, and in permitting the slush, snow, and ice to collect on the sidewalk at this point, so as to become uneven, rough, rounded, sloping, and ridged. A notice of said injury was served by the plaintiff on the city January 21, 1919. Petition was filed October 15, 1919.
[1] The primary contention of the appellant is predicated on the insufficiency of the statutory notice of injury under Code, § 3447. The notice per se is insufficient. No one contends otherwise. It is defective in that it fails to set out the place where the accident occurred. Owen v. Ft. Dodge, 98 Iowa, 281, 67 N. W. 281;Blackmore v. City of Council Bluffs (Iowa) 176 N. W. 369.
[2] Plaintiff, however, relies upon the written statement of his case made by him and received by the city solicitor within the time fixed by the statute. It is not the policy of the law to give too strict a construction in matters of this character. The statutory requirement of notice is liberally construed to the end that a person having a meritorious claim shall not be denied a right of recovery by a mere technicality as to the form of the notice given. Buchmeier v. Davenport, 138 Iowa, 623, 116 N. W. 695;Schnee v. Dubuque, 122 Iowa, 459, 98 N. W. 298;Perry v. Clarke County, 120 Iowa, 96, 94 N. W. 454.
[3] The form of the notice or service is immaterial. A notice directed “to whom it may concern,” and not signed by the plaintiff or his attorney, and handed to a city alderman by plaintiff's attorney, was held sufficient under circumstances showing that the plaintiff's case had been referred by resolution of the council to a committee of which the alderman receiving the notice was a member. Blackmore v. City of Council Bluffs, supra. See, also, Klingman v. Madison County, 161 Iowa, 422, 143 N. W. 426;Neeley v. Town of Mapleton, 139 Iowa, 582, 117 N. W. 981.
[4] After the notice of injury addressed to the mayor and city council was given, the matter of plaintiff's claim was referred by the council to the city solicitor, who sent word to the plaintiff that he desired to see him. Thereupon plaintiff called upon the solicitor at his office, and at that time plaintiff was told the purpose of the solicitor's request to the effect that he (city solicitor) wanted to see plaintiff with reference to the matter concerning which the latter had written the council. In this conversation the plaintiff was asked as to time, place, and circumstances of the accident. Plaintiff's answers were put in writing, and the caption of this item of evidence reads: “Statement of George A. Ray.” It clearly appears that it was made and written at the time and in response to the questions asked plaintiff by the solicitor. It must be said that the solicitor, in receiving the statement, was acting for and on behalf of the city. In plaintiff's original notice of injury to the city he closed by saying: “I shall be glad to give your representative all information in my power”--and the later information was requested and received by the legal representative of the city upon request of the city council, and the statement so received was complete in all details, and constituted full notice to the city of all facts required to be given under the statute.
Suppose that the plaintiff had gone to the office of the mayor or city solicitor in the first instance and said: “I wish to make a statement of my case and I...
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