Thomas v. City of South Charleston

Decision Date09 June 1964
Docket NumberNo. 12294,12294
Citation136 S.E.2d 788,148 W.Va. 577
PartiesLula B. Thomas et al. v. The CITY OF SOUTH CHARLESTON.
CourtWest Virginia Supreme Court

Syllabus by the Court

A provision of the charter of a municipal corporation which states that no action shall be maintained against the municipality for damages for a personal injury alleged to have been sustained by reason of the negligence of the city or any officer, agent or employee thereof, unless a written verified statement of the nature of the claim and of the time and place such injury is alleged to have been received shall have been filed with the recorder within thirty days after the cause of action shall have accrued, and that an action at law for personal injuries or death shall not be commenced until the expiration of thirty days after the filing of such notice, imposes a condition precedent to the right of one to maintain an action against the municipality under the provisions of Code, 1931, 17-10-17, as amended, which imposes liability upon a municipality to one who sustains an injury to his person or property by reason of any street, alley or sidewalk in such municipality being out of repair.

Preiser, Weaver & Daugherty, W. Dale Greene, Charleston, for appellants.

Kay, Casto & Chaney, George S. Sharp, Charleston, for appellee.

CALHOUN, Judge:

This case involves an action instituted in the Common Pleas Court of Kanawha County by Lula B. Thomas and George Thomas, wife and husband, against The City of South Charleston, a municipal corporation, arising from injuries sustained by Lula B. Thomas when she fell while a pedestrian on one of the public streets of the city. The action is based on Code, 1931, 17-10-17, as amended, which imposes liability upon a municipality to one who sustains an injury to his person or property by reason of any street, alley or sidewalk being out of repair.

Lula B. Thomas sued for damages for personal injuries sustained by her when she fell. George Thomas, the husband, sued to recover for medical and hospital bills incurred by him and for loss of consortium, as a consequence of his wife's personal injuries.

The defendant municipality filed an answer to the complaint in which, among other grounds of defense, it asserted that the plaintiffs failed to file with its recorder a notice within thirty days after the cause of action arose as required by its charter.

A jury returned a verdict in favor of Lula B. Thomas for $1,500 and in favor of George Thomas for $500. Judgment was entered on the verdict. The defendant moved the court to set aside the verdict and to enter judgment for the defendant in accordance with its motion for a directed verdict made at the conclusion of all the evidence; or, in the alternative, to set aside the verdict and grant the defendant a new trial for various reasons assigned, including the failure of the plaintiffs to file with the recorder a notice within thirty days after the cause of action arose. This motion was overruled and the case was appealed to the Circuit Court of Kanawha County.

The circuit court, sitting as an intermediate appellate court, set aside the verdict because of the failure of the plaintiffs to file a proper notice with the municipal recorder and awarded to the defendant a new trial by an order entered on June 28, 1963. From the judgment embodied in that order, the plaintiffs have appealed to this Court.

Section 5(a) of the charter of the defendant municipality is as follows:

'No action shall be maintained against the City of South Charleston for damages for a personal injury alleged to have been sustained by reason of the negligence of the City or of any officer, agent or employee thereof unless a written verified statement of the nature of the claim and of the time and place at which said injury is alleged to have been received shall have been filed with the recorder within thirty days after the cause of action shall have accrued. The cause of action shall be deemed to have accrued at the date of the sustaining of the injury, except that where death results therefrom, the time for a personal representative to give Notice shall run from the date of death. An action at law for damages for personal injury or death shall not be commenced until the expiration of thirty days after the filing of the Notice as provided in this section.'

A notice of the claim, duly verified by Lula B. Thomas, was mailed from Charleston, West Virginia, on January 6, 1962. It gave information of her fall on December 21, 1961. The notice was directed and mailed by certified mail to 'The Clerk of the City of South Charleston, City Building, South Charleston, West Virginia.' In connection with the mailing, a return receipt was requested.

The envelope containing the notice arrived at the City Building in South Charleston on January 8, 1962. Cecil Washburn was at that time the Recorder of The City of South Charleston. On January 8, 1962, the recorder's office was closed for a period of one to two hours while employees of that office were attending the funeral of a former fire chief of the city. The return receipt discloses that it was signed and that the envelope containing the notice was accepted on January 8, 1962, by R. W. Parkins, a member of the Police Department of The City of South Charleston. The signature was as follows: 'R. W. Parkins--Police Dept.'

From the record it cannot be determined what becam of the notice after it was delivered to the member of the police department. Ethel McGlathery testified that during the period embracing December, 1961, and January, February and March, 1962, she was employed as secretary to the Recorder, Mayor and Council of The City of South Charleston; that as a part of her duties she had 'custody and supervision of the files and correspondence and incoming correspondence' of the recorder's office; that, to her knowledge, the notice in question never came into the recorder's office; and that 'the Recorder's office' first learned of the claim of Lula B. Thomas when the mayor presented a newspaper clipping at a council meeting in May, 1962.

In the circumstances previously stated, it cannot be said that the plaintiffs, or either of them, filed with the recorder a written verified statement of the nature of the claim or claims, including a statement of the time and place the injury is alleged to have been received, in compliance with the charter provision.

Thompson v. City of Charleston, 118 W.Va. 391, 191 S.E. 547, involved an action against the...

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5 cases
  • McLean v. City of Spirit Lake
    • United States
    • United States State Supreme Court of Idaho
    • July 27, 1967
    ...272 Minn. 363, 137 N.W.2d 674 (1965); Paddock v. Town of Brookline, 347 Mass. 230, 197 N.E.2d 321 (1964); Thomas v. City of South Charleston, 148 W.Va. 577, 136 S.E.2d 788 (1964); Marino v. Town of East Haven, 120 Conn. 577,192 A. 225, 103 A.L.R. 295 (Conn., 1935); Bigelow v. City of Los An......
  • O'Neil v. City of Parkersburg
    • United States
    • Supreme Court of West Virginia
    • September 20, 1977
    ...of Charleston, W.Va., 204 S.E.2d 1 (1974); Simmons v. The City of Bluefield, W.Va., 225 S.E.2d 202 (1975); Thomas v. The City of South Charleston, 148 W.Va. 577, 136 S.E.2d 788 (1964); Thompson v. City of Charleston, 118 W.Va. 391, 191 S.E. 547 (1937); and White v. The City of Charleston, 9......
  • Higginbotham v. City of Charleston, s. 13163
    • United States
    • Supreme Court of West Virginia
    • April 2, 1974
    ...the plaintiff to notify the city of the claim and the nature thereof. This holding was reiterated in Thomas v. City of South Charleston, 148 W.Va. 577, 136 S.E.2d 788 (1964). We are in agreement with the decisions in the Thompson and Thomas cases which hold that the notice of an injury and ......
  • Simmons v. City of Bluefield, 13557
    • United States
    • Supreme Court of West Virginia
    • November 18, 1975
    ...with such a notice requirement is a condition precedent to the right of a claimant to sue a municipality. Thomas v. South Charleston, 148 W.Va. 577, 136 S.E.2d 788 (1964); Thompson v. City of Charleston, 118 W.Va. 391, 191 S.E. 547 (1937). However, this Court has never specifically stated t......
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