Wildin v. City of Hutchinson, 39647
| Decision Date | 09 April 1955 |
| Docket Number | No. 39647,39647 |
| Citation | 282 P.2d 377,177 Kan. 671 |
| Parties | J. F. WILDIN, Janie L. Wildin and Electa H. Wildin, Appellants, v. The CITY OF HUTCHINSON, Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Under the statute now appearing as G.S.1949, 12-105, no action shall be maintained against a city on account of injury to property unless the person injured shall within three months thereafter and prior to the bringing of the action file with the city clerk a written statement giving the time and place of the happening of the injury received and the circumstances relating thereto.
2. The language of the above statute is all-inclusive and the statute applies to all claims against the city whether arising out of its performance of either governmental or proprietary functions.
3. Under the facts pleaded in the petition, as set forth in the opinion, had there been necessity for proceedings in eminent domain by the city, but none had been had, the plaintiffs would have had an enforcible claim for damages within the purview of the above statute.
4. The above statute is mandatory and there must be a substantial compliance with it before an action may be maintained against a city to recover for injury to person or property.
5. A statement, filed with the city clerk in an attempt to comply with the above statute and which fails to include the place of the happening of the injury does not meet the statutory requirements and is not sufficient.
Abraham Weinlood, Bill R. Cole, Kenneth F. Ehling, D. Stewart Oswalt, and John H. Shaffer, Hutchinson, were on the brief for appellants.
Roy C. Davis, Hutchinson, argued the cause, and Fred C. Littooy, City Atty., Hutchinson, was with him on the brief for appellee.
The fundamental questions in this appeal are whether in an action against the defendant city to recover for injuries to property as alleged in their petition the plaintiffs were required by G.S.1949, 12-105 to file statement of their claim with the city, and if so whether the statement they did file met statutory requirements. An opinion is this day being filed in Howell v. City of Hutchinson, Kan., 282 P.2d 373 and reference is here made to portions thereof applicable to the situation here considered.
In April, 1943, plaintiffs commenced an action against the defendant city to recover for damages to their property resulting from alleged negligence of the city. Following a series of pleadings including demurrers and rulings thereon in February, 1954, plaintiffs were given leave to and did file their second amended petition, hereafter referred to as the petition.
For present purposes it may be said that in their petition plaintiffs alleged they were the owners of two described tracts of real estate (which actually are over three miles apart); that the Arkansas River adjoins a part of the property; that about May 1, 1942, the river was in flood stage and the city illegally constructed a dike along the river on land other than that owned by plaintiffs and in such manner as to obstruct the natural flow of the river and force the water on the plaintiffs' land destroying crops of the reasonable value of $20,000 and causing permanent damages in the sum of $5,000, and that on or about June 5, 1942, they filed their claim with the city clerk of defendant city, a copy being attached to the petition as an exhibit. It read:
'Enclosed find statement for damages done by the recent flood waters of the Arkansas River thrown over on us by the structure known as the Risley-Colladay dike, which was caused to be built by the City Commission of Hutchinson.
'Damages to our crops, pasture and fences, twenty thousand dollars ($20,000).
'Permanent damage five thousand dollars ($5,000).
'Total amount of damage, twenty-five thousand ($25,000) dollars.
'Resp.
'J. F. Wildin
'Janie L. Wildin
'Electa H. Wildin'
In the last paragraph preceding the prayer of their petition, plaintiffs alleged, in substance, that at the time they filed their claim, the words therein 'recent flood waters of the Arkansas River thrown over on us by the structure known as the Risley-Colladay dike' and 'our crops, pasture and fences' had a definite and specific meaning to the officials, agents and employees of the defendant city by reason of the fact that immediately prior to the construction of the dike they had been over the area which it was known would be affected by the dike and had maps showing the names of owners of lands which would be affected; that prior to the filing of the claim conferences were held between the plaintiffs and city officials concerning the effect of the dike and the damage to specific lands of plaintiffs and plaintiffs were advised to file their claims and without advice of counsel they filed the above claim. Other allegations are in expansion of the above, and that at no time since the filing of the claim has there been any confusion or doubt as to the times and places indicated in the claim on the part of the commissioners or other officials or persons concerned on behalf of the defendant city. Their prayer was for judgment for $25,000.
The city filed its motion that the allegations of the last paragraph as above noted be stricken as irrelevant, immaterial, constituting no part of a cause of action against the defendant and as prejudicial purported conclusions of law and non-actionable statements of purported facts. The trial court ruled and adjudged that the motion to strike be sustained; the plaintiffs be allowed twenty days to file an amended petition, and, if not so filed, the cause stand dismissed.
In due time the plaintiffs appealed from the above rulings and now present for consideration and determination the following questions: Was the filing of a claim under the statute later mentioned an essential part of their cause of action? If it was, did their petition show that a claim was filed which should reasonably to construed as sufficient?
Insofar as is necessary to note, at all times here involved the statute now appearing as G.S1949, 12-105 was in effect and read:
'No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within three months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and the circumstances relating thereto. * * *'
With respect to the appellants' first question, the gist of its contention is that it was error for the trial court to order the action dismissed, regardless of the terms of the claim filed, for the reason the action was maintainable even though no claim had been filed.
Appellants first argue that the above-quoted statute does not apply to acts of the city done in its proprietary capacity, but only to those imposed by statute or done in the performance of governmental functions. In support our attention is directed to two Nebraska cases, i. e., Henry v. City of Lincoln, 93 Neb. 331, 140 N.W. 664, 50 L.R.A.,N.S., 174, and Cook v. City of Beatrice, 114 Neb. 305, 207 N.W. 518. We need not review those cases here nor point out any reasons why they should not be followed. The question has previously been before this court and decided. In Thomas v. City of Coffeyville, 145 Kan. 588, 66 P.2d 600, where it was contended the statute referred to claims arising out of governmental functions and had no application to claims arising out of proprietary functions, and that erection and use of a memorial was in a proprietary capacity, this court stated it...
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