Reid v. Kansas City
| Decision Date | 05 March 1917 |
| Docket Number | No. 12331.,12331. |
| Citation | 192 S.W. 1047,195 Mo. App. 457 |
| Parties | REID v. KANSAS CITY. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.
Action by Warren D. Reid against Kansas City, Mo. From a judgment sustaining demurrer to the petition, plaintiff appeals. Affirmed.
Park & Brown and Phineas Rosenberg, all of Kansas City, for appellant. J. A. Harzfeld and Francis M. Hayward, both of Kansas City, for respondent.
The appeal herein arises upon the sustaining of a demurrer to plaintiff's amended petition. Action was brought to recover damages for personal injuries alleged to have been sustained by reason of a defect negligently allowed to remain in a street, into which the front wheel of plaintiff's loaded wagon dropped and was broken, throwing plaintiff out and breaking his arm and otherwise injuring him. The basis of the demurrer is that the petition states no cause of action, in that it fails to show a compliance with the act of March 21, 1913 (Laws 1913, p. 545), in reference to the giving of notice in writing to the mayor of the city within 90 days of the occurrence.
In considering the sufficiency of the demurrer, the facts stated in the petition are taken as true; wherefore we set them forth as follows:
Plaintiff was, as heretofore stated, injured by being thrown from his wagon on August 21, 1914. Plaintiff's original petition was filed May 15, 1915. His amended petition, against which the demurrer was sustained, was filed June 15, 1916. Consequently his suit was not instituted until nearly 9 months after his injury, and the institution of the suit cannot be treated as notice since it was not within the 90 days provided by the statute.
At the time of plaintiff's injury, and at all times ever since, two sections of the city ordinances were in force. One of these, section 1022, made it the duty of all policemen to make written reports of all accidents coming to their knowledge, caused by the defective condition of any street, where there may be a liability on the part of the city for damages. Said reports were required to state the time and place of the accident, the name and residence of the injured party, the extent of the injury, names of witnesses to the accident, and all other facts obtainable in regard to it; and these reports were required to be delivered to the city counselor and health commissioner. Section 1023 made it the duty of the health commissioner to visit the person injured and ascertain the nature and extent of the injuries received and obtain from such person a statement of the manner and cause of the accident. The section further required that all information received by the health commissioner shall be reduced to writing and immediately transmitted to the city counselor, who shall preserve the same for reference in case of suit being brought against the city for any such injury or accident.
Within one week after plaintiff's injury police officers made written reports of the said accident and injury and the same were delivered to the city counselor and the health commissioner. Within 60 days after said injury the health commissioner visited plaintiff and interrogated him as to the nature and extent of his injuries, and obtained from him a statement of the manner and cause of the accident, and also examined plaintiff's body and injuries; and such information so derived was reduced to writing and immediately transmitted to the city counselor. Plaintiff answered all questions put to him fully, and truthfully stated all the facts and circumstances pertaining to his said injury. He was cared for in the general hospital of the city by surgeons appointed and designated by it.
After the suit was brought, which, as stated, was long after the expiration of 90 days from the date of the injury, plaintiff was required, on motion of defendant, to undergo an examination by a physician appointed by the court, and was subpœnaed and was required by the city counselor to give his deposition, at which plaintiff was required by the city counselor to give full answers as to the time, place, circumstances, and extent of his injury, all of which questions plaintiff fully and truthfully answered.
For more than 90 days after said injury plaintiff was confined to the hospital and suffered great pain and disorder of mind, during which time he was unable to employ counsel or attend to business. How long such inability lasted is not stated, and it is not said that it continued until suit was brought.
No formal notice in writing was served upon the mayor, and unless the foregoing facts constitute notice within the meaning of the statute, or dispense with such notice by accomplishing every purpose of such requirement and thereby removing the reason for such notice, or unless the city counselor has waived the giving of the statutory notice, plaintiff has no right to maintain his action.
Said statute provides that:
"No action shall be maintained against any city of this state * * * [of 100,000 population] on account of any injuries growing out of any defect in the condition of any * * * street * * * in said city, until notice shall first have 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."
Notice to the city, in substantial compliance with the above statutory requirements, is a condition precedent to the maintenance of the action. Reno v. City of St. Joseph, 169 Mo. 654, 70 S. W. 123; Lyons v. St. Joseph, 112 Mo. App. 681, 87 S. W. 588; Canter v. St. Joseph, 126 Mo. App. 629, 105 S. W. 1; Jacobs v. City of St. Joseph, 127 Mo. App. 669, 106 S. W. 1072. Those statutory requirements are: (1) That the notice must be in writing, (2) it must be given to the mayor, (3) within 90 days from the injury, and it must state with reasonable certainty, (4) the place where, (5) the time when such injury was received, (6) the character and circumstances of the injury, and (7) "that the person so injured will claim damages therefor from the city." And a notice, even if given to the mayor within the 90 days, which fails to state or omits any one of the remaining four requirements, is insufficient. Purdy v. City of New York, 193 N. Y. 521, 86 N. E. 560 (); Jacobs v. City of St. Joseph, 127 Mo. App. 669, 106 S. W. 1072 (); Lyons v. City of St. Joseph, 112 Mo. App. 681, 87 S. W. 588 ().
It will be observed that the petition merely states that the police officers made written reports of the accident and injury to the chief of police, city counselor, and health commissioner. It does not state specifically what those reports contained. Since the ordinance required such reports to state the time and place...
To continue reading
Request your trial