Seifert v. City of Minneapolis

• Decision Date: 23 November 1973
• Docket Number: No. 43860,43860
• Citation: 213 N.W.2d 605,298 Minn. 35
• Parties: Elmira M. SEIFERT and Edward P. Seifert, Individually and as Husband of Elmira M. Seifert, Appellants, v. CITY OF MINNEAPOLIS, Respondent.
• Court: Minnesota Supreme Court

Page 605

213 N.W.2d 605

298 Minn. 35

Elmira M. SEIFERT and Edward P. Seifert, Individually and as Husband of Elmira M. Seifert, Appellants, v. CITY OF MINNEAPOLIS, Respondent.

No. 43860.

Supreme Court of Minnesota.

Nov. 23, 1973.

Syllabus by the Court

1. Notice of tort claim against a municipality, although not served upon the clerk of the municipality, sufficiently complies with the requirements of Minn.St. 466.05 if served upon a member of the governing body or upon any responsible official who is reasonably likely to place the notice before the governing body at its next meeting.

2. The 30-day period within which notification of tort claim against a municipality must be served upon the governing body according to § 466.05 does not restrict service of such notice to the normal business hours of the proper recipient of such notice.

Castor, Stich & Ditzler, and John E. Castor, Minneapolis, for appellants.

Keith M. Stidd, City Atty., Raymond H. Hegna, Asst. City Atty., Minneapolis, for respondent.

Louis W. Claeson, Jr., Minneapolis (for League of Minn. Municipalities), amicus curiae.

Heard and considered en banc.

ROGOSHESKE, Justice.

This is an action to recover damages resulting from a fall caused by a defective public sidewalk in the city of Minneapolis. The court, pursuant to a special verdict, awarded plaintiff Elmira M. Seifert damages of $7,200 and plaintiff Edward P. Seifert, her husband, $704.80 for loss of consortium. Upon post-trial motion for judgment notwithstanding the verdict the trial court reluctantly determined the service of notice of tort claim insufficient in view of past decisions of this court and denied recovery to both plaintiffs. The dispositive issue presented is whether the manner of service of the notice of claim upon a member of the city council complied with Minn.St. 466.05, subd. 1, which in material part provides:

'Every person who claims damages from any municipality for or on account of any loss or injury within the scope of section 466.02 shall cause to be presented to the governing body of the municipality within 30 days after the alleged loss or injury a written notice stating the time, place and circumstances thereof, and the amount of compensation or other relief demanded.'

Because we believe the purpose underlying our notice-of-tort-claim statute is achieved once notice reaches a member of the city council, or any other responsible official reasonably likely to place the notice before the governing body of the municipality at its next meeting, we hold plaintiffs' manner of service consistent with the requirements of § 466.05, subd. 1. In accordance with the urging of the trial court, we therefore reverse the post-trial order and reinstate the judgment.

The facts are not in dispute. On November 20, 1968, Elmira Seifert, aged 74, was injured as a result of a fall on a public sidewalk in the downtown area of Minneapolis. At 6 p.m. on Friday, December 20, 1968, 30 days after the injury occurred, a copy of a notice of a tort claim for damages was personally served upon Alderman Dan Cohen, a member of the city council then serving as its president, at his home in South Minneapolis. ¹ Additional copies of the notice of claim were also left at the city clerk's office and the city attorney's office on Monday, December 23, 1968. On the following day the secretary for plaintiffs' attorney left at the city clerk's office another copy of the notice of claim, to which was attached an affidavit of plaintiffs' attorney setting forth the service of the notice on Alderman Cohen. Although the copy of the notice left with Alderman Cohen cannot be located, the record is clear that the claim was presented and processed by the city council as though it had been filed December 20, 1968.

Prior to trial, defendant city moved for summary judgment based upon plaintiffs' alleged failure to comply with the provisions of § 466.05, subd. 1. The trial court, in the exercise of exemplary judicial discretion, reserved judgment on this issue until after trial to ensure the aged plaintiffs' presence at a trial on the merits and to protect their rights against a potential third party.

The principal purpose of our notice-of-tort-claim statute, as set forth in Hirth v. Village of Long Prairie, 274 Minn. 76, 79, 143 N.W.2d 205, 207 (1966), is--

'* * * to protect against dissipation of public funds by requiring that the municipality be promptly furnished with information concerning a claim against it so that full opportunity is provided to investigate it, to settle those of merit without litigation, and to correct any deficiency in municipal functions revealed by the occurrence. By timely service of notice, the municipality is also afforded protection against stale or fraudulent claims or the connivance of corrupt employees or officials.'

It is the contention of defendant city (with which amicus curiae agrees) that service of notice upon a member of the city council has been held insufficient by our prior decisions, particularly Aronson v City of St. Paul, 193 Minn. 34, 257 N.W. 662 (1934).

The language of § 466.05 and of our early decisions construing the statutes from which it evolved ² does not explicitly prescribe a single or exclusive manner of service. ³ Illustrative of this is the trilogy of Doyle v. City of Duluth, 74 Minn. 157, 76 N.W. 1029 (1898); Lyons v. City of Red Wing, 76 Minn. 20, 78 N.W. 868 (1899); Roberts v. Village of St. James, 76 Minn. 456, 79 N.W. 519 (1899).

In Doyle, service of the notice had been made upon the mayor of the city of Duluth. The trial court granted defendant's motion for dismissal on the ground that the complaint contained no allegation that notice of claim had been properly served upon the governing body of the city. In affirming the trial court's order, this court stated (74 Minn. 161, 76 N.W. 1030):

'The objection to the complaint having been first raised on the trial, it ought not to be sustained if, by any reasonable intendment, the complaint can be held to allege the necessary facts. But the difficulty is that the complaint alleges just what was done as to giving the notice. It was given to the mayor, and by no fair inference can we construe the complaint as alleging or even suggesting as a conclusion of law that notice was given to the city council.'

Still the court indicated that no single or exclusive rule would be established regarding the proper manner of service (74 Minn. 161, 76 N.W. 1030);

'How the notice shall be given to such body the statute does not say, but it is certain that notice given to the mayor is not notice given to the council. There is, however, no practical difficulty in giving notice to the council. It may be directed to the council, and left with the clerk or officer who has charge of the records and files of the council, with a request annexed that it be laid before the council at its next meeting. This would be the orderly and practical way of giving notice to the council or other governing body. We are not to be understood as holding that the suggested method is the exclusive one.' (Italics supplied.)

In Lyons v. City of Red Wing, Supra, the evidence revealed that plaintiff delivered notice to the city clerk within 30 days of the injury and that the clerk subsequently presented the notice to the city council. Relying upon the decision in Doyle, we said (76 Minn. 22, 78 N.W. 869):

'* * * It is sufficient if the notice and claim reach the council or governing body of the municipal corporation in due time, although it passes through the hands of others. * * * If the council is not in session when the notice is served, it may be directed to the council, and left with the clerk or other officer who has charge of the records and files of the council, with a request annexed that it be laid before the council at its next meeting. This, or some similar method, is the only practical way of serving the notice on the council in cases where it is not in session during the 30 days within which the notice must be given.' (Italics supplied.)

In Roberts v. Village of St. James, Supra, a case particularly analogous to the present appeal, plaintiff, within the 30-day period, served a copy of her notice of claim upon the village recorder and upon each member of the city council. On the following day, personal service of the original notice was made upon the president of the council, who thereafter sent it to the recorder. Without reaching the issue of whether service upon a member of the council was sufficient, the court considered only whether service upon the president, who in turn delivered the notice to the village recorder, complied with L.1897, c. 248. ⁴ In upholding this manner of service, the court reiterated what had been suggested in Doyle and Lyons, saying (76 Minn. 457, 79 N.W. 520):

'How the notice of injury must be given and claim for compensation presented to the council or other governing body of the municipality the statute does not direct. It must be done in some practical and effective way, and in determining the sufficiency of the method adopted in any particular case technical strictness will not be required; a substantial compliance with the...