Szroka v. Northwestern Bell Telephone Co.
| Decision Date | 08 April 1927 |
| Docket Number | No. 25529.,25529. |
| Citation | 213 N.W. 557,171 Minn. 57 |
| Parties | SZROKA v. NORTHWESTERN BELL TELEPHONE CO. et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; T. H. Salmon, Judge.
Action by Charles Szroka, as father of Joseph Szroka, his minor son, against the Northwestern Bell Telephone Company and others. From an order sustaining a demurrer of defendant City of Minneapolis to his complaint, plaintiff appeals. Affirmed.
Erling Swenson, of Minneapolis, for appellant.
Neil M. Cronin and John T. O'Donnell, both of Minneapolis, for respondent.
Action by Charles Szroka, as father of his minor son Joseph Szroka, 10 years old, to recover for injuries sustained by his coming into contact with a telephone wire in the streets of Minneapolis. Negligence is claimed on the part of the defendant telephone company, the defendant electric company, and the defendant city. The city demurred to the complaint. Its demurrer was sustained, and the plaintiff appeals.
The injury occurred on August 23, 1924. The city charter provides that no action against the city for an injury shall be maintained —
Minneapolis Charter 1920, c. 8, § 19.
Notice was given on January 23, 1925. The city had actual knowledge of the injury within 30 days after its occurrence. The action was commenced in February, 1925.
1. In this state and in most of the Western states a city is liable for injuries resulting from dangerous conditions in its streets. Such a liability did not exist at common law and is to be considered as one imposed directly or indirectly or impliedly by statute. In Nichols v. Minneapolis, 30 Minn. 545, 16 N. W. 410, it is said that —
"In respect to liability for injuries by reason of defects in streets, the Legislature may impose it on the corporation or not, as it deems most expedient, and it may prescribe the extent to which" or "the conditions on" "which it shall be liable, and the conditions on which the liability shall be enforced."
The care, supervision, and control of streets is directly cast upon the city, and liability for negligence is recognized. Minneapolis Charter 1920, c. 8.
The same principle is applied in other cases where a right is given and a condition attached as a part of the cause of action. Thus in William Danzer & Co. v. Gulf & S. I. R. Co., 268 U. S. 633, 45 S. Ct. 612, 69 L. Ed. 1126, Justice Butler referred to a statutory provision which would constitute "a part of the definition of a cause of action created by the same or another provision, and operate as a limitation upon liability." And in Kannellos v. Great N. R. Co. 151 Minn. 157, 186 N. W. 389, involving the federal Liability Act, Chief Justice Brown said that, "where a statute gives a new right of action," the time fixed for its enforcement is "an element in the right itself." And in Lipmanowich v. Crookston Lumber Co. (Minn.) 210 N. W. 47, Judge Lees said that the "Compensation Act created a right which did not exist at common law," and the time limited in it "attached to the right." And in Negaubauer v. Great N. R. Co., 92 Minn. 184, 99 N. W. 620, 104 Am. St. Rep. 674, 2 Ann. Cas. 150, involving a death by wrongful act statute of Montana, Chief Justice Start said that, "where by statute a right of action is given which did not exist at common law," the time fixed for its enforcement "becomes a limitation or condition upon the right." These cases involve a limitation statute, but they illustrate the nature of the 30-day notice. Unless it is given, no cause of action arises.
2. Some cases hold that a statute requiring such a notice does not apply to minors unable to give notice. McDonald v. Spring Valley, 285 Ill. 52, 120 N. E. 476, 2 A. L. R. 1359; Murphy v. Ft. Edward, 213 N. Y. 397, 107 N. E. 716, Ann. Cas. 1916C, 1040; City of Tulsa v. Wells, 79 Okl. 39, 191 P. 186. The weight of authority recognizes no exception. Baker v. Town of Manitou (C. C. A.) 277 F. 232; Morgan v. Des Moines (C. C. A.) 60 F. 208; Peoples v. Valparaiso, 178 Ind. 673, 100 N. E. 70; Madden v. Springfield, 131 Mass. 441; Dechant v. City of Hays, 112 Kan. 729, 212 P. 682; Davidson v. Muskegon, 111 Mich. 454, 69 N. W. 670; Schmidt v. Fremont, 70 Neb. 577, 97 N. W. 830; Hurley v. Bingham, 63 Utah, 589, 228 P. 213; Palmer v. Cedar Rapids, 165 Iowa, 595, 146 N. W. 827, Ann. Cas. 1916E, 558; 4 Dillon Mun. Corp. (5th Ed.) § 613, p. 2817; 28 Cyc. 1415; Dec. Dig. Mun. Corp. § 741 (1).
The Minneapolis Charter makes but one exception; that is, when one in consequence of the injury is bereft of reason. If the court makes another, it ingrafts it upon the charter by construction. The charter makers were satisfied with one. Whether there should be others was a matter of legislative policy. There are arguments of policy on one side and the other, but they are not for us. In this connection the views of Judge Caldwell in Morgan v. Des Moines (C. C. A.) 60 F. 208, in the Circuit Court of Appeals of this circuit, relative to the practical desirability of exempting a minor from the statute of limitations may be consulted with interest.
3. The claim chiefly urged is that the failure to serve notice was remedied by Laws 1925, c. 376, curative in form, approved April 24, 1925, as follows:
"That all notices of claims pursuant to section 1 of chapter 391, General Laws 1913, or pursuant to any charter provision filed against cities of the first class or the board of water commissioners thereof during the month of January or February, 1925, for damages claimed to have been suffered within five months prior to the time of serving said notice and subsequent to the thirty-day period fixed by said act, or any other period fixed by said charter if otherwise regular, shall be and hereby are declared valid and sufficient for all purposes, notwithstanding such notices were not filed within the thirty days specified in said act or written [within] any other period fixed by said charter and shall not be affected in any manner by reason of such fact, provided such notices were in fact filed with the proper body during such month of January or February, 1925, and provided further that said city or said board of water commissioners shall have had actual knowledge of said claim or injury and the circumstances thereof within thirty days after the happening of the same."
The city claims that the statute is unconstitutional as special or class legislation. The Constitution, art. 4, § 33, provides that no special law shall be enacted when a general law can be made applicable, and that whether a general law can be made applicable is a judicial question, and that the Legislature shall pass no local or special law regulating the affairs of any city. Section 34 requires the Legislature to provide general laws for the transaction of any business that may be prohibited by section 33, and that all such laws shall be uniform in their operation throughout the state.
Section 36 permits the Legislature to provide general laws relating to the affairs of cities, the application of which may be limited to cities of over 50,000 inhabitants, etc. In pursuance of the power granted, the Legislature has classified cities, and cities having more than 50,000 inhabitants belong to the first class. G. S. 1923, § 1265. The cities within this class are Minneapolis, St. Paul, and Duluth.
It may be conceded that the statute is not objectionable as special legislation because confined to cities of the first class; but, as stated in Lodoen v. City of Warren, 146 Minn. 181, 178 N. W. 741, citing many cases, section 36 "affects sections 33 and 34 only to the extent of permitting the Legislature to classify cities on the basis of population as therein...
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