Williams v. City of Jacksonville

• Decision Date: 07 March 1935
• Citation: 160 So. 15,118 Fla. 671
• Parties: WILLIAMS v. CITY OF JACKSONVILLE.
• Court: Florida Supreme Court

160 So. 15

118 Fla. 671

WILLIAMS v. CITY OF JACKSONVILLE.

Florida Supreme Court, Division A.

March 7, 1935

Error to Circuit Court, Duval County; George Couper Gibbs, Judge.

Action by Thomas C. Williams against the City of Jacksonville. Judgment for defendant, and plaintiff brings error.

Affirmed.

COUNSEL

George B. Mehlman, of Jacksonville, for plaintiff in error.

Austin Miller and Gov Hutchinson, both of Jacksonville, for defendant in error.

OPINION

BROWN Justice.

It appears from the declaration filed by the plaintiff in error in the court below that the plaintiff in error was employed by the defendant in error, the city of Jacksonville, as a laborer, and that, while working in a ditch in one of the streets of said city, he was ordered by the foreman supervising the job to fix a joint in a sewer line. While bent over, fixing said joint, it is alleged that a heavy piece of asphalt fell from the top of the embankment adjoining the ditch, striking the plaintiff upon the small of his back, permanently injuring him. The declaration alleged that the embankment was composed of heavy substances deposited on the edge of the ditch which were constantly in danger of falling in and upon those working in the ditch, and that said embankment was left unprotected and unguarded, and that the defendant knew, or by the exercise of ordinary care could have known, that, if any of the heavy objects lying on said embankment should fall down upon any person working in the ditch, it would cause great bodily injury. Preceding these allegations of fact there was an allegation in respect to the duty which the defendant owed to the plaintiff and that the defendant negligently and carelessly disregarded its said duty, in that it failed to provide the plaintiff a reasonably safe place in which to work and suitable supervision of said work.

The defendant city interposed a demurrer to the declaration, and the court made an order sustaining the second and eleventh grounds of the demurrer, and, the plaintiff declining to amend his declaration, the court rendered a judgment in favor of the defendant city on said demurrer.

The second ground of the demurrer was that the declaration 'is vague, indefinite and uncertain.' Our view is that the court erred in sustaining this ground of the demurrer. Counsel for the city contend that they could not gather from the declaration whether the negligence alleged was that of failure to provide suitable supervision or failure to provide plaintiff in error with a reasonably safe place in which to work. Negligence in both respects is alleged, and the fact that allegations of concurrent acts of negligence which together produce the injurious result are contained in one count does not necessarily render the count bad on demurrer. In Seaboard Airline Ry. Co. v Rentz, 60 Fla. 449, 54 So. 20, it was held that several acts of negligence alleged as a series of causes tending to the same point and terminating in death or injury to the plaintiff may be alleged in one count of the declaration, as affording one cause of action.

The eleventh ground of the demurrer, which was also sustained by the court, was that the declaration failed to allege that notice of the alleged injury was duly given to the city attorney of the defendant city in the manner and form required by law.

Section 11 of Acts 1919, c. 8279, as amended by chapter 11564, Acts of 1925, Ex. Sess. (being a provision of the charter of the city of Jacksonville), reads as follows:

'No suit shall be maintained against the City for damages arising out of its failure to keep in proper condition any sidewalk, pavement, viaduct, bridge, street, water works electric light plant, municipal docks and terminals, or other public place; neither shall any suit be maintained against the City arising out of any other tortuous action or action sounding in tort, unless it shall be made to appear that the damage alleged was attributable to the gross negligence of the City, and that written notice of such damage was, within thirty days after the receiving of the injury, given to the City Attorney with such reasonable specifications as to time and place and witnesses as would enable the City officials to investigate the matter; and no verdict shall in any suit be given for any amount exceeding compensation damages to the plaintiff directly attributable to such negligence on the part of the City and not caused by contributory negligence on the part of the plaintiff.

'It shall be the duty of the City Attorney, upon receiving any such notice, to at once investigate the matter and lay the facts supported by the evidence before the City Commission in a written report, and the City Commission shall have the right, and, upon the written request of the person injured, it shall be the duty of the City Commission to investigate the matter and it may, by resolution, make such reasonable settlement of any such damages as may be agreed upon between the City Commission and the City Attorney. All other claims against the City shall be settled in the same manner.'

It it true that the declaration did not allege that any notice whatever had been given to the city, but plaintiff in error contends that the charter provision above referred to does not apply to a case where a city employee is injured. It is contended that such statutory or charter provisions requiring notice to the city as a condition precedent to an action against the city sounding in tort is in derogation of common right and should have been strictly construed so far as concerned the necessity for such notice or presentation, citing 43 C.J. 1186.

It is admitted that this court has upheld the validity of this provision of the city charter in several cases, but it is granted that those cases are not applicable here, because in none of such cases was the action brought against the city by an employee. Among the cases referred to is the case of High v. City of Jacksonville, 51 Fla. 207, 40 So. 1032, 1033, and Crumbley v. City of Jacksonville, 102 Fla. 409, 135 So. 885, and the latter case on rehearing, 138 So. 486. In the case of High v. City of Jacksonville, supra, this court, speaking through Mr. Justice Hocker, said:

'Such a notice to a city is required in many states and so far as we can discover has been held to be a reasonable requirement intended to protect cities against fraudulent and unjust demands.'

In the case of Crumbley v. City of Jacksonville, supra (102 Fla. 421, 138 So. 486, 488), this court said:

'Furthermore, the Legislature might reasonably deem it wise and necessary to throw certain safeguards around municipal corporations to protect them against unfounded or fraudulent claims, which safeguards might not be deemed necessary in order to afford protection to private corporations even when engaged in some one or more of similar activities. It might have been in the legislative mind that private corporations or individuals engaged in business for profit may be depended upon to take care of their own interests and make prompt and efficient investigation of all claims made or likely to be made against them. On the other hand, cities, with miles of streets and electric lines, etc., cannot keep them under watch all the time, and, unless promptly notified of injuries received, or alleged to have been received, cities might frequently find themselves unable to ascertain the actual facts of bona fide claims, and seriously handicapped in defending against fraudulent claims. There are so many differences between public corporations on the one hand and private corporations and individuals on the other, and there being an express grant of broad powers to the Legislature in section 8 of article 8 of the Constitution with reference to municipal corporations, that we cannot see our way clear to hold that the Legislature was making an arbitrary and unreasonable classification when it provided that, as a condition precedent to suit, a party must give reasonable notice to the city of the nature and character of his claim and the circumstances under which it arose, so that the public funds of the city might be protected by ample opportunity for its officials to make investigation of the facts while there was yet opportunity to make that investigation efficiently and effectively.'

Plaintiff in error argues that the statute could not have been intended to apply to a case where one of the city's employees in injured, because the city is then put on notice by the knowledge of the foreman and the city medical attendant; that in the case of an employee the city thus has immediate knowledge of the tortious injuries and is in a ready position to ascertain the facts and prepare the matter for trial or settlement. It will have been observed that the charter provision requires that the notice be given to the city attorney and makes it his duty to at once investigate the matter and lay the facts before the city commission. Counsel for plaintiff in error contends that the city attorney, in case of injury to an employee of the city, is in a position to have such notice by merely requiring the foreman and medical attendant of the city to submit reports to him personally on all injuries and accidents to city employees coming to their attention; also that the reason for requiring notice in such cases, to enable the municipality to protect itself against spurious and fraudulent claims, is absent since a municipality must be presumed to have notice of an injury to its servant. To this argument counsel for the city replied that the notice provision of the charter is needed to protect the city, not only as against third persons, but also as against city employees, so as to safeguard the city against the fraudulent claims of employees ...