Szroka v. Northwestern Bell Telephone Company
| Decision Date | 08 April 1927 |
| Docket Number | 25,529 |
| Citation | 213 N.W. 557,171 Minn. 57 |
| Parties | CHARLES SZROKA v. NORTHWESTERN BELL TELEPHONE COMPANY AND OTHERS |
| Court | Minnesota Supreme Court |
Plaintiff appealed from an order of the district court for Hennepin county, Salmon, J., sustaining the demurrer to the complaint of the defendant City of Minneapolis. Affirmed.
Statutory notice of personal injury under charter of Minneapolis.
1. The charter of Minneapolis requires that notice of an injury be given to the city within 30 days after its occurrence as a condition to the maintenance of a suit for negligence. The cause of action is given directly or indirectly or impliedly by statute, and the giving of the notice is an essential part of the cause of action.
Infancy is no excuse for failure to give such notice.
2. The giving of notice is not excused by the fact that the person injured is a minor.
Curative act of 1925 is unconstitutional.
3. Laws 1925, c. 376, curative in form, applicable to cities of the first class and so worded as to apply to the cause of action claimed by the plaintiff, and assuming to give a cause of action for past injury notwithstanding the failure to give the notice, is in form and in substance special and class legislation, and is unconstitutional.
Municipal Corporations, 28 Cyc. p. 1448 n. 15; p. 1461 n. 1 New.
Statutes, 36 Cyc. p. 1014 n. 65.
See note in 36 L.R.A.(N.S.) 1136; 13 R.C.L. 489; 4 R.C.L. Supp. 821; 5 R.C.L. Supp. 703.
See note in 31 A.L.R. 622 626; 19 R.C.L. 1043; 5 R.C.L. Supp. 1055.
See note in 5 L.R.A.(N.S.) 327; 22 L.R.A.(N.S.) 534; 42 L.R.A.(N.S.) 465; 25 R.C.L. 823; 6 R.C.L. Supp. 486.
Erling Swenson, for appellant.
Neil M. Cronin, City Attorney, and John T. O'Donnell, Assistant City Attorney, for respondent City of Minneapolis.
Action by Charles Szroka as father of his minor son Joseph Szroka, ten 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 other 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 Fbruary, 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. City of 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.
When a statute or charter requires that a notice of injury be given the municipality the giving of such notice is an essential part of the cause of action. Without it there is no cause of action. Nichols v. City of Minneapolis, 30 Minn. 545, 16 N.W. 410; Bausher v. City of St. Paul, 72 Minn. 539, 75 N.W. 745; Doyle v. City of Duluth, 74 Minn. 157, 76 N.W. 1029; Engstrom v. City of Minneapolis, 78 Minn. 200, 80 N.W. 962; Peterson v. City of Red Wing, 101 Minn. 62, 111 N.W. 840; Mitchell v. Village of Chisholm, 116 Minn. 323, 133 N.W. 804; Wornecka v. City of St. Paul, 118 Minn. 207, 136 N.W. 561; Diamond Iron Works v. City of Minneapolis, 129 Minn. 267, 152 N.W. 647; Frasch v. City of New Ulm, 130 Minn. 41, 153 N.W. 121, L.R.A. 1915E, 749. The notice is not a statute of limitation. Thus, in Crocker v. City of Hartford, 66 Conn. 387, 34 A. 98, the court says that "until such notice is given no right of action exists." In many cases it is said that the giving of notice is a condition precedent to a cause of action. Trost v. City of Casselton, 8 N.D. 534, 79 N.W. 1071; Huntington v. City of Calais, 105 Me. 144, 73 A. 829; Batchelder v. White, 28 R.I. 466, 68 A. 320. And in Moulter v. City of Grand Rapids, 155 Mich. 165, 118 N.W. 919, the court said that, "it being optional with the legislature whether it would confer upon persons injured a right of action therefor or leave them remediless, it could attach to the right conferred any limitations it chose."
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. Inc. 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. G.N. Ry. 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 Lbr. Co. 168 Minn. 332, 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. G.N. Ry. Co. 92 Minn. 184, 99 N.W. 620, 104 Am. St. 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. City of Spring Valley, 285 Ill. 52, 120 N.E. 476, 2 A.L.R. 1359; Murphy v. Village of Fort Edward, 213 N.Y. 397, 107 N.E. 716, Ann. Cas. 1916C, 1040; City of Tulsa v. Wells, 79 Okla. 39, 191 P. 186. The weight of authority recognizes no exception. Baker v. Town of Manitou (C.C.A.) 277 F. 232; Morgan v. City of Des Moines (C.C.A.) 60 F. 208; Peoples v. City of Valparaiso, 178 Ind. 673, 100 N.E. 70; Madden v. City of Springfield, 131 Mass. 441; Dechant v. City of Hays, 112 Kan. 729, 212 P. 682; Davidson v. City of Muskegon, 111 Mich. 454, 69 N.W. 670; Schmidt v. City of Fremont, 70 Neb. 577, 97 N.W. 830; Hurley v. Town of Bingham, 63 Utah 589, 228 P. 213; Palmer v. City of Cedar Rapids, 165 Iowa 595, 146 N.W. 827, Ann. Cas. 1916E, 558; 4 Dillon, Mun. Corp. (5th ed.) § 1613, 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 engrafts 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. City of 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 L. 1925, p. 477, 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...
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