Wornecka v. City of St. Paul

• Decision Date: 14 June 1912
• Docket Number: 17,557 - (125)
• Citation: 136 N.W. 561,118 Minn. 207
• Parties: ANNA WORNECKA v. CITY OF ST. PAUL
• Court: Minnesota Supreme Court

136 N.W. 561

118 Minn. 207

ANNA WORNECKA v. CITY OF ST. PAUL

Nos. 17,557 - (125)

Supreme Court of Minnesota

June 14, 1912

Action in the district court for Ramsey county to recover $2,000 for personal injuries. The answer admitted its existence as a municipal corporation but denied all the other allegations of the complaint. The case was tried before Olin B. Lewis, J and a jury which returned a verdict in favor of plaintiff for $500. From an order granting defendant's motion for a new trial, plaintiff appealed. From an order denying defendant's motion for judgment notwithstanding the verdict and granting a new trial, it appealed. Affirmed on both appeals.

SYLLABUS

Defective sidewalk -- notice of personal injury.

The plaintiff was injured by alleged defects in a sidewalk of the city. Her attorney, shortly after the accident, caused the defective plank, which occasioned her injury, to be taken from the walk and retained until it was offered in evidence on the trial, and a new plank to be put into the walk, in place of the defective one, and securely nailed. Thereafter the statutory notice was given to the defendant. Held:

1. That if such acts were wilful, and thereby the purpose of the statute requiring notice was defeated, and the defendant deprived of the benefit and protection thereof, the service of such notice was not a good-faith compliance with the statute, and the plaintiff cannot recover.

2. Whether the defendant was thus deprived of the benefit of the statute was made by the evidence a question of fact, and the trial court correctly denied a motion for judgment and granted a new trial.

Samuel A. Anderson and A. F. Storey, for plaintiff.

O. H O'Neill, Kenneth G. Brill and Albin E. Bjorklund, for defendant.

OPINION

START, C.J.

This is a personal injury action, in which the plaintiff had a verdict for $500 in the district court of the county of Ramsey. The defendant then made a motion for judgment notwithstanding the verdict or for a new trial, on the grounds of excessive damages, errors of law, and that the verdict was not justified by the evidence and was contrary to law. The trial court made its order denying the motion for judgment and granting a new trial for the reasons following:

"It appears that shortly after the accident a person from the office of plaintiff's lawyer visited the scene of the accident, took up the defective plank which had caused plaintiff's fall, and securely nailed into position a new plank which this agent had procured for that purpose. Thereafer plaintiff's attorney served a notice required by the charter upon the city of St. Paul, and the city sent its representatives to visit the scene of the accident and took photographs of the place. It appears that the city was not aware that the new plank had been substituted until the time of the trial, when plaintiff produced the old plank as evidence in support of her case. Under these circumstances, I believe the city was deprived of the benefit which the notice provided for by the charter was intended to confer. This conduct in effect worked a fraud upon the city, and deprived the city of the protection and benefit which the charter sought to provide. For these reasons, among others, a new trial is granted."

Each party appealed from the whole order. The defendant's contention in support of its appeal is to the effect that the trial court erred in denying its motion for a directed verdict and subsequent motion for judgment, for the reason that the removal of the defective plank and the putting of another in its place before serving the statutory notice was such a fraud upon the city as to vitiate the notice, leaving the cause as if no notice had been served.

The purpose of the statute, requiring...