Stone v. District of Columbia, 12638.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation237 F.2d 28,99 US App. DC 32
Docket NumberNo. 12638.,12638.
PartiesVenstone STONE, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
Decision Date28 June 1956

Mr. Foster Wood, Washington, D. C., for appellant.

Mr. Milton D. Korman, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. Vernon E. West, Corp. Counsel, Chester H. Gray, Principal Asst. Corp. Counsel, and Andrew G. Conlyn, Asst. Corp. Counsel, were on the brief, for appellee.

Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER and BASTIAN, Circuit Judges, sitting en banc. (Circuit Judge BURGER took office after this case was heard and took no part in its consideration and decision.)

Writ of Certiorari Denied December 3, 1956. See 77 S.Ct. 221.

WASHINGTON, Circuit Judge, announced the judgment of the court and filed the following opinion, in which WILBUR K. MILLER and BASTIAN, Circuit Judges, join:

This is a damage suit against the District of Columbia, in which the central question is whether the statutory requirement as to notice of claim has been met.

Plaintiff-appellant tripped and fell, injuring his ankle, while rounding the northeast corner of Sixth and L Streets, S. E. He brought this action in the Municipal Court against the District of Columbia on the ground that the accident was caused by the District's negligent maintenance of a manhole and cover at that corner, it being alleged that because of this negligent maintenance the manhole edge and cover protruded from the ground and caused plaintiff's fall. The District moved for summary judgment on the ground that the notice requirement established by Section 12-208, D.C.Code 1951,1 had not been complied with. During the argument of this motion, two bases of compliance were suggested to the trial court, a letter to the Corporation Counsel by appellant's attorney, and a police report. Each occurred within the statutory period, but each named a different (and incorrect) corner of the intersection at which the accident occurred.2 The police report, an excerpt from which was read to the trial court by counsel for appellee, on its face is based on a statement by Stone, though perhaps Stone's statement was transmitted to the police by some third person. Despite the errors in the two reports, the District located the correct corner, witnesses to the accident, and the offending manhole within six months of the accident.3

The Municipal Court denied the District's motion for summary judgment, and, after a jury trial, appellant won a judgment. The Municipal Court of Appeals reversed. 1955, 112 A.2d 497, 499. It did so on the strength of McDonald v. District of Columbia, 1955, 95 U.S.App. D.C. 305, 221 F.2d 860, where this court held that inaccuracies in a written notice seasonably sent to the Commissioners were not cured by subsequent but still seasonable corrections conveyed to an assistant in the office of the Corporation Counsel (to whom the Commissioners had referred the original notice) and to the District's Inspector of Claims. Dismissal for failure to comply with the statute was upheld by this court on the theory that the correction should have been sent to the Commissioners themselves instead of their subordinates, although the District conceded its defense to the claim had not been prejudiced.

In the present case we permitted an appeal, and, after oral argument before a three-judge panel, set the case for rehearing en banc because the court wished to reconsider its ruling in McDonald.

We turn first to the notice by plaintiff's attorney to the Corporation Counsel. Section 1-301 of the D.C.Code (1951) says that the Corporation Counsel "shall * * * have charge and conduct of all law business of the said District, and all suits instituted by and against the government thereof." The notice required by Section 12-208 of the D.C.Code (1951) is clearly related to potential suits against the District, and as can be seen from Judge Bastian's dissent in McDonald v. District of Columbia, supra, 95 U.S.App. D.C. at pages 306-307, 221 F.2d at pages 861-862, notice to the Commissioners is normally transmitted as a matter of course to the Corporation Counsel. In our view, the opinion in McDonald misconceives the purpose of the statutory notice, which is to give the District timely information concerning a claim against it, so it may adequately prepare its defense.4 To insist that the notice must be addressed to the Commissioners, and to rule out as insufficient a notice addressed to their Counsel, to whom Congress has delegated the responsibility for defending the District against suit, seems to us most unreasonable. Congress could hardly have intended that failure to observe such an idle formality should cause a claimant to be denied his day in court. We think, therefore, that the McDonald case should be overruled on that point. We conclude that Section 1-301 of the Code makes notice to the Corporation Counsel, if otherwise adequate, equivalent to notice to the Commissioners for the purposes of Section 12-208.

In the instant case, we think the notice was otherwise adequate. Within two months after the accident, the District had interviewed the witnesses to the accident and taken pictures of the site. These events show that there was no prejudice to the District from plaintiff's error. It may, of course, be true that the letter from plaintiff's counsel to the Corporation Counsel bore no causal relationship to these events. But Section 12-208 of the D.C.Code (1951) contains no such requirement. A notice would, for example, suffice if given within the six months period though the District had completed preparation of its case and repaired the spot before receipt of the notice. In a case such as the instant one, in which the right site was discovered and there is no assertion that plaintiff deliberately sought to mislead the District, notice fully complies with the purpose of the statute when it pin-points the locale with sufficient accuracy so that an investigation starting from the notice could reasonably be expected to uncover the available information. Such, on the face of the record, was this case. If — despite determination of the right spot and location of the witnesses — the District wished to claim prejudice, it was up to the District to make a record on that point. Had the report filed by plaintiff's counsel merely referred to 6th and L Streets, S. E., without reference to a specific corner, we think the notice would have been beyond question. The inclusion of additional specificity — though erroneous — should not defeat the notice in the absence of a showing of prejudice.

We turn to the police report, which appellant says constitutes "sufficient notice" under the proviso appended to Section 12-208. We agree, since we find no support in the statute for applying a stricter standard to that report than we have set out above for a notice from plaintiff. It is true that in the instant case the report by the police was not based on first hand observation but on a report to the police originating with appellant. But the statute contains no requirement of observation or on-the-site investigation. It seems obvious that the reference to a police report is included because Congress did not wish to cut off a plaintiff for lack of notice when the officials of the District had received from the Police Department a report of the episode prepared "in regular course of duty." The extent of the investigation by the police should not be the measure of the plaintiff's rights. The report in this case was adequate for purposes of the proviso.

Judges EDGERTON and FAHY agree that we should reverse the judgment of the Municipal Court of Appeals. Accordingly the judgment is reversed.

Judges EDGERTON and BAZELON agree that so far as McDonald holds that notice must be sent directly to the Commissioners and that an otherwise adequate notice addressed to the Corporation Counsel is not sufficient, McDonald is erroneous. On that point McDonald is overruled.

So ordered.

BAZELON, Circuit Judge, is of the view that the appeal should be dismissed as having been improvidently granted, for the following reasons:

We granted Stone's petition for allowance of an appeal in order to review the effect of our decision in McDonald. After the appeal was heard by a panel of this court, a rehearing in banc was ordered, sua sponte, because a majority of this court thought reconsideration of McDonald desirable and that this case presented questions appropriate for that purpose. But I now think, upon further study after the rehearing, that the record before us is unsatisfactory for that purpose.

The complaint alleged that "plaintiff notified the Commissioners of the District of Columbia in writing" within six months after the accident. All that appears in the record concerning such notice is the following stipulation in an amended pre-trial order:

"The District of Columbia received a letter from Foster Wood, attorney for plaintiff, addressed to the `Corporation Council\' under date of April 30, 1953, setting forth that the plaintiff was injured April 15, at the northwest corner of sixth and L Streets southeast." Emphasis supplied.

The evidence at the trial disclosed that the accident occurred on the northeast, rather than the northwest corner of the intersection. There was no evidence that appellant corrected the discrepancy within the six months' period, either orally or in writing.

It is true that at the trial, which was held long after the six months' period expired, a District investigator identified a photograph he had taken at the northeast corner about six weeks after the accident. But the record does not make clear that the District authorities were aware, when the photograph was taken, or at any time within the six months' period, that the photograph...

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