Wheeler v. City of Detroit

• Decision Date: 02 July 1901
• Court: Michigan Supreme Court
• Parties: WHEELER v. CITY OF DETROIT.

86 N.W. 822

127 Mich. 329

WHEELER v. CITY OF DETROIT.

Supreme Court of Michigan

July 2, 1901

Error to circuit court, Wayne county; Byron S. Waite, Judge.

Action by Ethel Wheeler, by next friend, against the city of Detroit. From a judgment for plaintiff, defendant appeals. Affirmed.

P.J. M Hally (Timothy E. Tarsney, of counsel), for appellant.

Frederic T. Harward, for appellee.

HOOKER J.

The defendant has appealed from a verdict and judgment rendered against it in an action for negligence. The plaintiff, a young woman, is alleged to have stepped into a hole in the sidewalk upon one of the streets of the city, existing by reason of the loosening or removal of one or more of the boards of which the walk was constructed. Under the provisions of the charter, it was essential that a claim should be presented to the common council before suit. See Detroit City Charter, � 86; Springer v. City of Detroit, 102 Mich. 302, 60 N.W. 688; Id., 118 Mich. 69 76 N.W. 122. Proof of the presentation of a notice to the law department of the city was made. This described the accident as occurring while she was walking on the sidewalk on the east side of Fifteenth street, between Lincoln and Poplar streets. It is claimed that this description of the place was not sufficiently definite. The records of the common council were offered, and showed that a petition was presented by Charles G. Wheeler, on behalf of Ethel Wheeler, for compensation for injuries suffered through a fall upon a defective sidewalk; that a committee reported that there was no legal liability, and a recommendation that compensation be denied, which report was accepted and adopted. It was objected that the petition referred to in these proceedings was not produced by the plaintiff. Thereupon it was shown that a petition was presented to the city clerk, that the clerk looked through his files in the witness' presence, and that he looked, and they could not find it. It was contended that this did not warrant secondary evidence of the contents of the petition. We think the testimony was competent. The paper was traced to the city and, though no formal notice to produce it was given application was made to the proper custodian, who was unable to produce it. Had a formal notice been given at the time of the trial, it would have been sufficient, subject to a reasonable delay, if, in the opinion of the court, one was required. The offer of the proof was tantamount to a notice under the circumstances. There was no claim of surprise, or intimation that time was desired to contradict this proof. We think, also, that it was competent to permit the jury to find that the petition referred to this claim.

A more important question relates to the description of the place. We have recently held that, under the circumstances of the case, a limitation of the place to a point in front of a lot in a certain block was sufficient. Here the statement is that it is on a walk on the east side of Fifteenth street, between two other streets; hence, within a distance of not less than a block,--possibly many blocks. But presumptions are in favor of the validity of the action of the trial court, who might lawfully take judicial notice that these were public streets. Porter v. Waring, 69 N.Y. 250. If, therefore, we...