Wilton v. City of Flint

• Decision Date: 19 July 1901
• Citation: 128 Mich. 156,87 N.W. 86
• Court: Michigan Supreme Court
• Parties: WILTON v. CITY OF FLINT.

87 N.W. 86

128 Mich. 156

WILTON v. CITY OF FLINT.

Supreme Court of Michigan

July 19, 1901

Error to circuit court, Genesee county; Charles H. Wisner, Judge.

Action by Herbert Wilton against the city of Flint. From a judgment for plaintiff, defendant brings error. Affirmed.

Daniel Heims (Ed. S. Lee, of counsel), for appellant.

Black &amp Brown, for appellee.

LONG, J.

This action was brought to recover damages for injuries received March 18, 1899, on a claimed defective sidewalk. Plaintiff filed a claim with the common council of the city on April 5 1899, in which he set forth his injuries. This claim was disallowed, and on May 25, 1899, the present suit was commenced. At the commencement of the trial before the jury defendant objected to any testimony being given, for the reason that there was no claim filed with the council in conformity to the provisions of the charter; that neither the claim, affidavit attached thereto, nor the declaration gave the defendant any notice of the particular place on the sidewalk where the injury occurred; that defendant did not have notice of the particular defect. The court stated to counsel: 'I think the paper shown me, which I understand is the one that is offered in evidence, is a sufficient compliance with section forty-two of the charter, and I therefore overrule the objection so far as that is concerned.' The notice referred to states: 'I hereby notify you that I have sustained injuries, and have a claim against the city of Flint for such injuries, received on the 18th day of March, 1899, on a defective sidewalk on the north side of Court street, in front of the residence of Dr. Rice or nearly in front of the same, the place where such injury occurred being in front of the lot on which said residence is located, said residence being No. 326 West Court street Third ward of city of Flint.' The notice gives the time of day when the injury occurred, and then states: 'My left foot struck against some plank or obstruction on said walk, and I was thrown with great violence upon said walk, by reason of which I was unable to rise from the place where I had fallen. * * * That said walk was out of repair, and naturally unsafe for travel. * * * That by reason of said fall I was severely wrenched, strained, and bruised. My right hip bone, as I am informed, was broken and dislocated from its socket. That I have sustained severe and painful injury to the spinal cord, * * * have lost the use and control of my lower limbs, and have become helpless. * * * That I claim damages from the city of Flint to the amount of $30,000, and have appointed Black & Brown, of Patterson Building, Flint, to represent me and act as my attorneys in all matters pertaining to this claim.' This claim was sworn to by plaintiff, and duly served on the common council of the city.

Section 42 of the charter (Loc. Acts 1897, p. 575) referred to by the court below provides: 'It shall be a sufficient defense in any court to any action or proceeding for the collection of any demand or claim against the city for personal injuries or otherwise that it has never been presented to the council for allowance,' etc. This provision, when wholly set out is almost identical with the provisions of the city of Owosso, referred to in Brown v. City of Owosso (Mich.) 85 N.W. 256; and a fuller and more specific...