Workman v. City of Emporia

• Decision Date: 09 December 1967
• Docket Number: No. 44869,44869
• Citation: 200 Kan. 112,434 P.2d 846
• Parties: Martel WORKMAN, by Elsie Workman, His Wife and Next Friend, Appellant, v. The CITY OF EMPORIA, Kansas, a Municipal Corporation, Appellee.
• Court: Kansas Supreme Court

Page 846

434 P.2d 846

200 Kan. 112

Martel WORKMAN, by Elsie Workman, His Wife and Next Friend, Appellant, v. The CITY OF EMPORIA, Kansas, a Municipal Corporation, Appellee.

No. 44869.

Supreme Court of Kansas.

Dec. 9, 1967.

Syllabus by the Court

1. It lies within the power of the legislature to enact a statute establishing conditions precedent to instituting actions against a municipality to recover damages for injury to person or property.

2. The requirements of K.S.A. 12-105 are mandatory and compliance therewith is a condition precedent to the maintenance of an action against a city to recover personal injury or property damages.

3. The timely filing of the statement required by K.S.A. 12-105 is an essential part of compliance with the provisions of that statute and such statement must be filed within the prescribed period of three months.

4. Compliance with the provisions of the foregoing statute is not excused by reason of the incompetency of the injured person, due either to age, mental incapacity, or physical disability, or to a combination thereof.

5. The provisions of K.S.A. 12-105 as applied to an incompetent person do not offend against constitutional requirements of due process.

6. The record is examined in an action brought against a city to recover damages for physical injury alleged to have been occasioned by negligence on the part of city police officers or other city agents and it is held that the trial court properly sustained the city's motion to dismiss the action because of plaintiff's failure to file a written statement with the city as required by statute.

Dale A. Spiegel, Emporia, argued the cause, and Hans L. Peterson, Lawrence, George E. McCullough, W. L. Parker, Jr., Robert B. Wareheim, Reginald LaBunker, and James L. Rose, Topeka, were with him on the brief for appellant.

Marc A. Hurt, Emporia, argued the cause and was on the brief for appellee.

FONTRON, Justice.

The plaintiff, Marted Workman, brings this action, by Elsie Workman, his wife and next friend, to recover damages from the city of Emporia, Kansas, for personal injuries allegedly sustained as a result of negligence on the part of city police officers. The city filed a motion to dismiss the action on the ground that the petition failed to state a claim upon which relief could be granted. The trial court sustained this motion and the plaintiff has appealed.

In summary, the petition alleges that on July 22, 1964, the plaintiff was a customer and business invitee of the municipal parking lot operated as a revenue producing business by the city and equipped with meters to receive coins from the customers; that while he was a customer the plaintiff became ill and lost consciousness beside his automobile and has remained in a semi-conscious state to the time this action was filed; that at 3:44 p. m. on said date the police department of Emporia received a telephone call to attend the plaintiff, and an officer or officers removed plaintiff to the city jail; that despite plaintiff's unconscious state the agents, servants and employees of the city did nothing to investigate his condition nor to summon medical aid or secure a physician, but let him lie unconscious until about 10:30 p. m., when a telephone conference was held with plaintiff's wife, who thereupon called a physician who had plaintiff taken to St. Mary's Hospital, where emergency aid was administered.

The petition further alleges that on the following day the plaintiff was removed to the Kansas University Medical Center at Kansas City, Kansas, where extensive brain surgery was performed for a ruptured aneurysm, which saved his life, but left him totally and permanently disabled and wholly dependent upon his wife; that notice was served on the city clerk, pursuant to K.S.A. 12-105, on or about May 13, 1965, and the claim was denied July 21, 1965.

The petition concludes by alleging that the neglect of the city's agents, servants and employees was the proximate cause of plaintiff's damages.

The city's motion for dismissal was predicated on two grounds: (1) that plaintiff did not comply with the provisions of K.S.A. 12-105, requiring written claim to be filed with the city within three months after the injury was incurred, and (2) that the officers or members of the police department were acting in pursuance of the police power of the city, for which the city would not be liable. In sustaining the motion and dismissing plaintiff's action, the trial court concluded that both grounds relied on by the defendant were valid and required dismissal of plaintiff's lawsuit.

We shall first consider the contention that the trial court erred in holding that plaintiff's failure to file a written claim or statement with the city within the three month period provided in K.S.A. 12-105 precludes him from maintaining this action.

So far as pertinent to this case K.S.A. 12-105 provides:

'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 (3) 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 * * *.'

The plaintiff does not dispute the existence of this statute, or that it was a part of our statutory law at the time of his injury. Neither does he claim that his statement was filed within the time prescribed by the statute. He does maintain, however, that the statute should not bar him from maintaining this action for two reasons: (1) that he should not be held to strict compliance with the requirements of notice when he was mentally and physically incapacitated; and (2) that the statute is unconstitutional. We disagree as to both grounds.

Since the precursor of this statute was first enacted in 1903, this court has consistently held that compliance with its requirements is mandatory and is a condition precedent to the maintenance of an action for damages against a municipality. In the recent case of Cornett v. City of Neodesha, 187 Kan. 60, 353 P.2d 975, we discussed this matter in some depth and said:

'This court has always recognized the power of the legislature to enact a statute establishing conditions precedent to the maintenance of an action against a city for damages to person or property. Indeed it has long been committed to the proposition that the provisions of the statute just quoted, which we pause here to note have been applicable to cities of the first class since 1903 (L.1903, Ch. 122, § 7), to cities of the second class since 1919 (L.1919, Ch. 143, § 1) and cities of the third class since the 1923 revision of our general statutes (R.S. 1923, 12-105), establish conditions precedent to the maintenance of an action against a municipality on account of injuries to persons or property; and that it is incumbent upon any person seeking to maintain such an action to affirmatively plead substantial compliance with the requirements of its provisions in order to state a cause of action against the city. See, e. g., Dechant v. City of Hays, 112 Kan. 729, 212 P. 682; Hibbs v. City of Wichita, 176 Kan. 529, 271 P.2d 791; Wildin v. City of Hutchinson, 177 Kan. 671, 282 P.2d 377; Howell v. City of Hutchinson, 177 Kan. 722, 282 P.2d 373, 63 A.L.R.2d 882; McGinnis v. City of Wichita, 180 Kan. 608, 306 P.2d 127; Watkins v. City of El Dorado, 183 Kan. 363, 327 P.2d 877; Avery v. City of Lyons, 183 Kan. 611, 331 P.2d 906.' (pp. 62, 63, 353 P.2d p. 977.)

That the legislature intended the filing of the statement required by the statute to be a condition precedent to maintaining suit against a municipality is clearly revealed in the title of L.1957, Ch. 84, which is now K.S.A. 12-105. The title reads:

'AN ACT relating to conditions precedent to actions against cities, amending section 12-105 of the General Statutes of 1949, and repealing said original section.'

This court has expressly held that timely filing is an essential part of compliance, i. e., that the statement must be filed within the period prescribed. In Ray v. City of Wichita, 138 Kan. 686, 27 P.2d 288, we held that a claim which was filed one day late was not filed within the required three months. See, also, Cole v. City of Kansas City, 141 Kan. 633, 42 P.2d 940, and Beard v. Kansas City, 96 Kan. 102, 150 P. 540.

Plaintiff's contention that his incompetence should excuse him from complying with the requirements of K.S.A. 12-105 has been specifically ruled on, and rejected, in Dechant v. City of Hays, 112 Kan. 729, 212 P. 682. This was an action against the...