Sollenbarger v. Inc. Town of Lineville
| Decision Date | 12 February 1909 |
| Parties | SOLLENBARGER v. INCORPORATED TOWN OF LINEVILLE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Wayne County; H. M. Towner, Judge.
Action for damages resulted in a judgment. Thereafter plaintiff died, and the administrator of her estate was substituted as party plaintiff. The defendant appeals. Reversed.Tedford & Carter, for appellant.
Poston & Murrow, for appellee.
Viola Herron resided on the south side of West Third street in the defendant town, and in the first house east of Jones street. She had put in a garden on a lot on the north side of the street, and at 2 or 3 o'clock in the afternoon of June 8, 1906, started with an armful of pea sticks from her back yard to go across to her garden. Upon reaching the walk on the south side of the street she stepped on it, a loose board flew up, tripping her, and she fell. To her claim for damages the defendant interposes but two objections on this appeal: (1) That the action is barred by the statute of limitations; and (2) that she was guilty of negligence contributing to her injury. Only the first part of these need be considered. The action was not begun until October 18, 1906, more than three months subsequent to the injury, so that, “unless written notice specifying the time, place and circumstances of the injury shall have been served upon” the town “within sixty days from the happening of the injury,” the action is barred. A paper in words following was delivered to the mayor and members of council in session on July 11, 1906.
Lineville, Iowa, July 11, 1906.
The sufficiency of this notice is challenged on three grounds: (1) It was not signed; (2) it does not sufficiently describe the place where the injury occurred; and (3) it fails to state the circumstances of the injury. The first objection, omission of signature, is disposed of by Neely v. Mapleton (Iowa) 117 N. W. 981. The place is described in the notice as “on West Third street, Lineville, Iowa.” This street was three-fourths of a mile in length. Manifestly the notice alone was altogether too general to indicate the place of the accident. Courts have repeatedly declared that no more than reasonable certainty is required, but that much ought not to be dispensed with. To exact less would defeat the very purpose of the statute in many cases and in all annul the requirement that the notice be in writing. Though its object is to apprise the authorities of the location of the defect in the street, and of the time and circumstances of the injury, to the end that they may investigate while the facts are fresh, nevertheless it is a condition essential to avoid the bar of the statute, and to be effective must be in writing. Giles v. City of Shenandoah, 111 Iowa, 83, 82 N. W. 466;Sachs v. Sioux City, 109 Iowa, 224, 80 N. W. 336. Undoubtedly the description of the place as contained in the notice may be aided by proof of conditions as they exist, but the better-considered cases are to the effect that the notice must be sufficiently definite in itself to enable a person of ordinary capacity, with knowledge of the physical condition of the streets, in the exercise of reasonable diligence, to locate the place of the injury. Thus in Barribeau v. City of Detroit, 147 Mich. 119, 110 N. W. 512, the court held that “to be legally sufficient, a notice must contain a description of the place of the accident so definite as to enable the interested parties to identify it from the notice. * * *” This rule permits a construction of the statute provision which does not emasculate it, and one which is in accord with the opinions of the courts. In New Hampshire the rule is thus stated: “If the statement so designates the place that the officers of the town, being men of common understanding and intelligence, can by the exercise of reasonable diligence and without other information from the plaintiff find the exact place where it is claimed the damage was received, it is in this respect sufficient, because it fully answers the purpose of the statute,” and whether this may be done is ordinarily a question for the court. Carr v. Ashland, 62 N. H. 665.
In Maloney v. Cook, 21 R. I. 471, 44 Atl. 692, the place was described as “the southerly side of Church street” in Woonsocket. The street was a quarter of a mile long, and the notice was adjudged insufficient, even though it appeared that within the 60 days within which the notice was required to be served plaintiff's counsel explained to the committee on claims particularly the place where the accident happened, and the city was fully informed thereof, the court saying that: ...
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...51 N. W. 571, and cases cited; Morrison v. City of Eau Claire, 115 Wis. 538, 92 N. W. 280, 95 Am. St. Rep. 955;Sollenbarger v. Town of Lineville, 141 Iowa, 203, 119 N. W. 618, and cases cited; Forsyth v. City of Oswego, 191 N. Y. 441, 445, 84 N. E. 392, 123 Am. St. Rep. 605, 608, 609, and n......
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... ... against any city or town of this State, unless written notice ... containing a brief general ... (1902), 115 Wis. 538, 92 N.W. 280, 95 Am. St. 955; ... Sollenbarger v. Town of Lineville (1909), ... 141 Iowa 203, 119 N.W. 618, and cases ... ...
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- Sollenbarger v. Incorporated Town of Lineville