Snyder v. City of Albion

• Decision Date: 28 May 1897
• Citation: Snyder v. City of Albion, 113 Mich. 275, 71 N.W. 475 (Mich. 1897)
• Court: Michigan Supreme Court
• Parties: SNYDER v. CITY OF ALBION.

71 N.W. 475

113 Mich. 275

SNYDER v. CITY OF ALBION.

Supreme Court of Michigan

May 28, 1897

Error to circuit court, Calhoun county; Clement Smith, Judge.

Action by Julia J. Snyder against the city of Albion for damages. From a verdict for plaintiff, defendant brings error. Affirmed.

M. D. Weeks (Wilson & Cobb, of counsel), for appellant.

Pringle & Hewett (Thomas E. Barkworth, of counsel), for appellee.

MONTGOMERY J.

The plaintiff recovered a verdict and judgment for injuries sustained by reason of the falling of a sidewalk which constituted a portion of the bridge crossing the Kalamazoo river in the defendant city. The defendant brings error. The record contains a large number of assignments of error, but the principal contentions of counsel may be treated of under two or three heads.

It is first contended that the plaintiff's case failed for the reason that she failed to show that the claim upon which she sued had been presented for adjustment and allowance to the common council of the city. The charter of the city (section 2, c. 15, Act No. 296 of the Local Acts of 1885) reads as follows: "Said city council shall have authority to adjust and settle all accounts and claims against said city and no suit or action shall be maintained against said city on any account or claim until the same shall have been presented to said council, and said council shall have an opportunity to pass upon the same." We think this was not intended to apply to actions of this character. The word "claim," when used in some relations, may be broad enough to include a claim for damages in an action ex delicto; but, in the connection in which it is used in this statute, we think it is not so intended. In New York it has been held that the word "claim," as used in the Code, authorizing an attachment, does not apply to a tort. Saddlesvene v. Arms, 32 How. Prac. 280. See, also, Stringham v. Supervisors, 24 Wis. 594. The question has also arisen in various states under charter provisions similar to that contained in the charter under consideration. In Howell v. City of Buffalo, 15 N.Y 512, the charter of Buffalo, which provided that "it shall be a sufficient bar and answer to any action, or proceeding in any court, for the collection of any demand or claim, that it has not been presented to the council for audit or allowance," was construed, and it was held that the provision did not apply to actions ex delicto. In Harrigan v. City of Brooklyn, 119 N.Y. 156, 23 N.E 741, the charter of Brooklyn, which provided that "no action or special proceeding shall be maintained against the city unless it shall appear by the complaint that at least thirty days have elapsed since the claim or claims upon which said action or special proceeding is founded were presented in detail and duly verified by such claimant or claimants to the comptroller of said city for adjustment," was considered. It was said, "The words 'claim or account,' in connection with the purpose of presentation and the designation of the officer to whom the presentation is to be made, naturally indicate claims on contracts." The statute of Wisconsin provides that "no action shall be maintained against the city upon any claim or demand unless such person first shall have presented his claim or demand to the common council for allowance and the same shall have been disallowed in whole or in part." It was held in Sommers v. City of Marshfield, 90 Wis. 59, 62 N.W. 937, that this statute did not require a previous presentation of a claim for personal injuries. It was said: "This court has repeatedly held that the words 'claim or demand,' as used in the charter, do not include a cause of action for personal injury by reason of a defective street or sidewalk. *** 'Claim or demand,' as thus used, include only such as arise upon contract." See, also, Sheridan v. Salem, 14 Or. 328, 12 P. 925; City of Warren v. Davis, 43 Ohio St. 447, 3 N.E. 301; and Lay v. City of Adrian, 75 Mich. 438, 42 N.W. 959. Counsel for defendant rely upon the case of Springer v. City of Detroit, 102 Mich. 300, 60 N.W. 688. But in that case there was ample evidence in the act itself to indicate the sense in which the words "demand or claim" were used. The second paragraph of the provision quoted on page 302, 102 Mich., and page 689, 60 N. W., was as follows: "It shall be a sufficient bar and answer to any action or proceeding in any court, for the collection of any demand or claim against said city, that it has never been presented to the common council for audit or allowance, or, if on contract, that it was presented without said affidavit and rejected for that reason, or that the action or proceeding was brought before the common council had a reasonable time to investigate and pass upon it." Mr. Justice Long, in distinguishing this case from Lay v. City of Adrian, says: "The Detroit charter...