Rogers v. City of Honolulu

• Decision Date: 08 May 1933
• Docket Number: No. 2086.,2086.
• Citation: 32 Haw. 722
• Parties: ELLEN KEKINO ROGERS v. THE CITY AND COUNTY OF HONOLULU.
• Court: Hawaii Supreme Court

32 Haw. 722

ELLEN KEKINO ROGERS

v.THE CITY AND COUNTY OF HONOLULU.

No. 2086.

Supreme Court of the Territory of Hawai‘i.

Argued April 25, 1933.

Decided May 8, 1933.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. D. H. CASE, JUDGE.

Syllabus by the Court

A notice to the mayor of the City and County of Honolulu, from one claiming damages by reason of the death of her husband upon the theory that the accident which resulted in his death was due to the negligence of the city and county in its maintenance of a public highway, is insufficient to comply with the requirement of section 1833, R. L. 1925, that the claimant shall set forth fully where the accident occurred when the only statement in that respect is that the accident happened “on North King Street,” that being a street more than two miles in length.

The requirement of section 1833, R. L. 1925, that the written notice of the claim therein referred to should fully state the place where the accident occurred cannot be waived by the city and county attorney or by the mayor.C. B. Dwight (also on the brief) for plaintiff.

W. C. Tsukiyama, City and County Attorney (also on the brief), for the City and County.

PERRY, C. J., BANKS AND PARSONS, JJ.

OPINION OF THE COURT BY PERRY, C. J.

This is an action at law in which the plaintiff claims of the defendant the sum of $20,000 as damages accruing to her by reason of the death of her husband, the allegation being that his death was due to injuries caused by an accident resulting from negligence of the defendant in failing to keep North King Street, a public highway, in a safe condition. It is claimed in the declaration that while the plaintiff's husband was proceeding on a motor cycle along North King Street in a lawful and careful manner the motor cycle “struck a rut or obstruction in the street” and he was violently thrown to the ground. The accident occurred on September 10, 1930, and it is further alleged that on February 6, 1931, the plaintiff “did file with the mayor and board of supervisors of the City and County of Honolulu, pursuant to section 1833 of the Revised Laws of Hawaii, 1925, her notice in writing of the injuries received by her late husband * * * and the damages resulting therefrom and in which notice plaintiff herein stated the time, place and circumstances surrounding the injury, the extent thereof and the amount claimed therefor.” The defendant demurred to the amended declaration on the ground that there was no sufficient averment of negligence and on the further ground that the allegations referring to the filing of a written notice set forth at best mere conclusions of law and did not show a compliance with section 1833. The demurrer was overruled and an answer of general denial filed. After trial a verdict was rendered for the plaintiff in the sum of $4,125. The case comes to this court upon exceptions.

The notice sent by the plaintiff's attorney to the mayor and the board of supervisors reads as follows: “I have been retained by Ellen Kekino Rogers to file her claim for damages in the sum of $20,000.00 against the City and County of Honolulu, due to the death of her husband, George Rogers, who on September 10, 1930, was killed on account of the failure of the City and County of Honolulu to properly maintain and keep in repair North King Street. Mr. Rogers was proceeding to town on King Street and struck an excavation, or rut, in the street. He was violently thrown to the ground and died the same day from a fractured skull. This is to notify you that unless this claim is adjusted by the 20th of February, 1931, I will, on behalf of Mrs. Rogers, institute in the circuit court a suit for damages against the City and County of Honolulu.” The demand having been referred to the city and county attorney, the latter replied as follows, under date of February 20, 1931: “The board of supervisors has referred to this office the claim of Mrs. Ellen K. Rogers for damages in the sum of $20,000.00. Having made a thorough investigation of the accident which resulted in the death of Officer Rogers, we do not believe that Mrs. Rogers is entitled to damages. If you wish, we shall be pleased to further confer with you upon this matter.” The defendant objected to the introduction of the letter of February 6, 1931, and reserved an exception to the order overruling the objection and admitting the letter. So, also, the defendant at the conclusion of the trial moved for a directed verdict on the ground, among others, that the notice given to the mayor did not comply with the requirements of section 1833 and reserved an exception to the ruling refusing to so instruct the jury. Section 1833, R. L. 1925, reads as follows: “Before the city and county shall be liable for damages to any person for injuries to person or property received upon any of the streets * * * of the city and county, or on account of any negligence of any official or employee of such city and county, the person so injured, * * * or someone in his behalf, shall, within six months after receiving such injuries, give the mayor notice in writing of such injuries, and the specific damages resulting, stating fully in such notice, when, where and how the injuries occurred, the extent thereof and the amount claimed therefor.” It...