Van Auken v. City of Adrian

• Decision Date: 25 January 1904
• Citation: 135 Mich. 534,98 N.W. 15
• Court: Michigan Supreme Court
• Parties: VAN AUKEN v. CITY OF ADRIAN.

98 N.W. 15

135 Mich. 534

VAN AUKEN v. CITY OF ADRIAN.

Supreme Court of Michigan

January 25, 1904

Error to Circuit Court, Lenawee County; Guy M. Chester, Judge.

Action by Anson L. Van Auken, as executor of the estate of Abram I Grant, deceased, against the city of Adrian. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

Plaintiff's decedent brought suit against the defendant city, claiming that he stepped into a hole of a sidewalk of said city and was injured. The claim of negligence is that the sidewalk was out of repair. With its plea the defendant gave notice that the claim was barred by the provision of the charter, not having been presented to the common council within three months after the accident. Mr. Grant died during the pendency of the suit, which was then revived in the name of his administrator.

In his opening statement plaintiff's counsel stated his case as follows: 'The accident occurred upon the 19th day of December, 1900. No claim was ever presented to the council in writing until the 8th day of the following June. Upon that date a written claim for damages, duly verified, was made and presented. It was referred to the committee on claims and finance on the 24th day of June; that committee took the matter under advisement. They investigated the claim. They called for, or at least received, affidavits showing the circumstances under which the injury was received. They made a verbal report to the council on the 24th day of---- The Court: You just made the statement that the committee called for or received affidavits. Now, which did they do? If the court, please, I do not know what the proof will be on that question. Negotiations were entered into between the common council and Mr. Jewett and myself, representing the plaintiff. Both of us saw different members of the council had conversations with them, urging upon them the justice of giving this old gentleman something for his injuries, and several members of the council assured us that they would take the matter up and investigate it, and, if they thought he ought to have anything, would make a recommendation to the council that something be given him. That may not be competent proof, because they were not acting in such a way as would bind the city. But they did receive the affidavits whether we furnished them or whether they called for them. I think that the chairman of the finance committee called for these affidavits, and I think the proof will so show, but I will not state to your honor positively that that is true but anyway they received those affidavits. They investigated the matter. They took it under advisement, and upon the 2d day of July the chairman of the finance committee of the common council made a verbal report to that body that he was not prepared to submit the matter, and asked for further time to investigate this matter. Upon the 25th day of September--more than two months after the claim had been presented to the council in writing, duly verified, and after the committee on claims and finance had investigated the case and received the affidavits--they made a report to the council that they had investigated the claim; that there was no cause of action; and recommended that the same be disallowed.' Counsel then stated to the court that he had nothing further to offer, whereupon the circuit judge delivered his opinion that the city was not liable, and in closing his opinion said: 'I am impressed with the idea that this statute fixes the penalty for failure to make some claim, at least, before the council within ninety days, and that the penalty is that the claim is thereafter forever barred. And I do not believe that the claimant can say that he has lost any rights, or had been prejudiced, or lulled into security by any action on the part of the council in this case. The fact that they did take some action upon the claim did not lull the plaintiff into any security whatever. If they had seen fit to allow him anything, he would have been that much ahead; but, if they had allowed him anything I doubt very much whether the claimant could have enforced the payment. I do not believe the council have any right to dispose of the public money against the express provision of law, and for that reason I am led to believe that, under the facts as they stand proven here, the plaintiff would not be entitled to recover.' Counsel for plaintiff then made a further statement that the chairman of the committee to whom the claim was referred had a conference with one of the attorneys for the plaintiff, and asked to be furnished proof with regard to the existence of the hole, the length of time it had been there, the extent of the injury, etc., and that, in compliance with such request, affidavits showing the facts were furnished. Counsel did not state by whom they were furnished. After this statement the court directed a verdict for the defendant.

An action against a city for...