Skoog v. City of Grand Forks

• Decision Date: 29 January 1981
• Docket Number: No. 9803,9803
• Citation: 301 N.W.2d 404
• Parties: Melville SKOOG and Aetna Casualty and Surety Company, Plaintiffs, Appellants and Cross-Appellees, v. CITY OF GRAND FORKS, Defendant, Appellee and Cross-Appellant. Civ.
• Court: North Dakota Supreme Court

Page 404

301 N.W.2d 404

Melville SKOOG and Aetna Casualty and Surety Company Plaintiffs, Appellants and Cross-Appellees, v. CITY OF GRAND FORKS, Defendant, Appellee and Cross-Appellant.

Civ. No. 9803.

Supreme Court of North Dakota.

Jan. 29, 1981.

Degnan, McElroy, Lamb, Camrud, Maddock & Olson, Grand Forks, for Melvin Skoog, argued by Gordon W. Myerchin, Grand Forks.

Jay H. Fiedler, Asst. City Atty., Grand Forks, for City of Grand Forks.

SAND, Justice.

This is an appeal by the plaintiffs, Melville Skoog and Aetna Casualty and Surety Company (hereinafter referred to as Skoog), from a district court order reducing the prayer for relief in Skoog's complaint from $145,000.00 to $7,505.83. The defendant, City of Grand Forks, cross-appealed from part of the same order which denied its motion for summary judgment of dismissal.

Melville Skoog allegedly fell on a sidewalk in the city of Grand Forks on 20 Feb. 1974. Pursuant to § 40-42-01, North Dakota Century Code, ¹ a notice of claim was filed on behalf of Skoog and Aetna Casualty and Surety Company with the city auditor of Grand Forks on 16 May 1974.

Skoog's notice of claim provides as follows:

"TO THE CITY AUDITOR, CITY OF GRAND FORKS, NORTH DAKOTA:

"This is to advise you that pursuant to Section 40-42-01 of the North Dakota Century Code I do hereby make formal claim and demand against the City of Grand Forks for injuries sustained and suffered by me on February 20, 1974, at approximately 7:00 p. m. on a public sidewalk which is on the east side of South Washington Street in the 600 block, approximately in the middle of the block and possibly near a fire hydrant. Said location is within the city limits of Grand Forks, North Dakota.

"My injury occurred because the city sidewalk was rendered unsafe, extremely dangerous, and icy due to the neglect of the city in failing to properly maintain the sidewalk in good condition for the use of the public.

"As a result of the negligence of the City of Grand Forks in failing to properly maintain the portion of the city sidewalk referred to herein, I tripped and fell on my left hip and sustained a severe fracture of the pelvic socket; that as a result of said fracture, I was transported by ambulance to the Deaconess Hospital in Grand Forks where I remained from February 20 through February 22 and was on that date transported by ambulance to St. Cloud Hospital, St. Cloud, Minnesota, under the care of Drs. Jaeger and Petersen from February 22 through May 11, 1974. I have incurred a hospital bill of approximately Six Thousand Four Hundred Thirty-eight and 43/100 ($6,438.43) Dollars, an ambulance bill of Three Hundred Sixty-seven and 40/100 ($367.40) Dollars, and doctor bills in the amount of Seven Hundred and 00/100 ($700.00) Dollars. I have lost time from my employment. I have experienced pain and discomfort, lost time from my employment, sustained a loss of wages and will require further medical treatment in the future, the exact amount of which cannot be ascertained at this time. When I will be able to return to work is unknown.

"As a result of the foregoing facts, I do hereby respectfully place the City of Grand Forks on notice that I am claiming damages against the City of Grand Forks, North Dakota, in the sum of Seven Thousand Five Hundred Five and 83/100 ($7,505.83) Dollars plus medical expenses and wage losses resulting from my injury." ²

On 21 June 1974 Skoog was notified that the city of Grand Forks had denied his claim. This action was commenced with service of a summons and complaint on 19 Nov. 1974. Skoog's prayer for relief against the city of Grand Forks sought a total of $145,000.00 in damages. In its answer, the city of Grand Forks denied any negligence on its part, sought to dismiss the action because of a failure to comply with § 40-42-03, NDCC, ³ and, without admitting liability, sought to reduce the prayer for relief from $145,000.00 to $7,505.83 pursuant to § 40-42-04, NDCC. ⁴

After a hearing on the city of Grand Forks' motion for summary judgment to dismiss Skoog's complaint and its alternative motion to reduce the prayer for relief, the district court entered an order denying the motion for summary judgment and reducing Skoog's prayer for relief to $7,505.83. The appeal and cross-appeal are from that order.

Skoog and the city of Grand Forks each have filed a motion to dismiss the other party's appeal. Thus, the first question for our determination is whether or not the appeal and cross-appeal are properly before us.

Skoog asserts that pursuant to § 28-27-02(5), NDCC, the district court order reducing his prayer for relief is reviewable. Section 28-27-02(5), NDCC, provides as follows:

"The following orders when made by the court may be carried to the supreme court:

"5. An order which involves the merits of an action or some part thereof;"

We have previously considered orders striking parts of pleadings in the context of whether or not they involve the "merits of an action or some part thereof" and are therefore appealable. Shermoen v. Lindsay, 163 N.W.2d 738 (N.D.1968); Granger v. Deaconess Hospital of Grand Forks, 138 N.W.2d 443 (N.D.1965); LaDuke v. E. W. Wylie Co., 77 N.D. 592, 44 N.W.2d 204 (1950); Stimson v. Stimson, 30 N.D. 78, 152 N.W. 132 (1915).

In Shermoen v. Lindsay, supra 163 N.W.2d at 741, we quoted the following with approval from In Re Fettig's Estate, 129 N.W.2d 823, 827 (N.D.1964):

"In Bolton v. Donavan, 9 N.D. 575, 84 N.W. 357, this Court expanded upon the term 'merits' and held that the phrase 'involves the merits' must be so interpreted as to embrace orders which pass upon substantial legal rights of the suitor, whether such rights do or do not relate directly to the cause of action or subject matter in controversy."

In this instance the order prevents pleading or proving damages in excess of $7,505.83. Cf., Shermoen v. Lindsay, supra (order prevented either pleading or proving existence of liability insurance); Granger v. Deaconess Hospital of Grand Forks, supra (order prevented proving affirmative defense of charitable immunity).

Relying on these cases, and cases cited therein, we conclude that the district court's order reducing the amount in the prayer for relief is appealable because it limits the amount of possible recovery for Skoog which affects his substantial legal rights and thus involves the merits of an action.

We next consider Skoog's motion to dismiss the city of Grand Forks' cross-appeal from the denial of the city's motion for summary judgment.

The Legislature, through its enactments, specifies what orders are appealable. An order denying a motion for summary judgment has not been made appealable. Becker v. Doubek, 292 N.W.2d 72 (N.D.1980); Rude v. Letnes, 154 N.W.2d 380 (N.D.1967). Accordingly, the district court's order denying the city of Grand Forks' motion for a summary judgment is not appealable, and therefore the cross-appeal of the city of Grand Forks is dismissed.

We next turn to the merits of Skoog's appeal. Skoog contends that because of the uncertain nature of his injuries and the amount of some of his future damages, it was impossible for him to comply with the statutory requirement to specify his damages and still comply with the requirement that the notice of claim be verified. Skoog contends that substantial compliance with the statute is all that is required, and that his notice of claim meets that requirement because it contains all the information known by him about his injury at the time of the filing of the claim.

The city of Grand Forks, however, argues that the question is not one of substantial compliance with the statute, but rather is a question of statutory interpretation. The city of Grand Forks contends that § 40-42-04, NDCC, is not ambiguous, and that the statutory language clearly directs that no damages may be recovered in excess of the amount demanded in the claim filed with the municipality.

Skoog cites several cases from other jurisdictions which allowed the awarding of damages in a greater amount than was demanded in the notice of claim. See 24 A.L.R.3d 965 (1969), and cases cited therein. The city of Grand Forks attempts to distinguish these cases by pointing out that although the statutes of the other jurisdictions are similar in many respects to our statute, none of the other statutes contain a provision such as North Dakota's statute which specifically provides that the claimant in an action "shall not be permitted ... to recover damages in excess of the amount demanded in such claim." Our research does not reveal any statute similar in this respect to our statute. Consequently, these cases do not provide us with meaningful assistance in construing our statutory provision.

The Legislature has directed that statutory provisions be "construed liberally, with a view to effecting its objects and to promoting justice." Section 1-02-01, NDCC. In enacting a statute it is presumed that a just and reasonable result is intended. Section 1-02-38(3), NDCC. A statute must be construed to avoid ludicrous and absurd results. State v. Mees, 272 N.W.2d 61 (N.D.1978); Apple Creek Township v. City of Bismarck, 271 N.W.2d 583 (N.D.1978). Furthermore, words used in a statute are to be understood in their ordinary sense, § 1-02-02, NDCC, and the terms of a statute cannot be extended unreasonably even under a liberal construction. City of Mayville v. Rosing, 19 N.D 98, 123 N.W. 393 (1909). However, when the wording of a statute is clear and free of all ambiguity the letter of it is not to be disregarded under the pretext of pursuing its spirit. Section 1-02-05, NDCC.

We have observed that the notice required in making or filing a claim is of a remedial nature and the statutory provisions should be liberally construed in favor of the claimant; however, there must be substantial compliance with the statute. Aune v. City of Mandan, 167 N.W.2d 754 (N.D.1969); Hoge v. City of Milnor, 56 N.D. 285, 217 N.W. 163 (1927).

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