Anthony v. City of St. Joseph

133 S.W. 371, 152 Mo. App. 180, 1911 Mo. App. LEXIS 79

• Court: Missouri Court of Appeals
• Decided: January 2, 1911
• Status: Published

Opinion

ELLISON, J.

Plaintiff’s action is founded on an injury received on one of defendant’s streets, which is charged to have been negligently maintained. The judgment in the trial court was for plaintiff.

The petition states and evidence shows the injury occurred on the 13th day of August, 1908, while the notice to the city which the statute (sec. 5724, R. S. 1899) requires to be given, is that it occurred on the 14th of that month. The variance between the true date and the notice is fatal. [Canter v. St. Joseph, 126 Mo. App. 629; Gardner v. New London, 63 Conn. 267; Larkin v. Boston, 128 Mass. 521; White v. Stowe, 54 Vt. 510.] In Gardner v. New London, the notice was that the injury was received on the 5th of May, 1892, when, in fact, it was shown to be on the second of that month. The variance was held to be fatal; and the same result followed in White v. Stowe, where the day and month were correctly given, but the year omitted. In this case the variance was one day, but we cannot see how any difference is to be made or distinction drawn between one day and any greater number of days.

In some states ciyil actions against municipalities are not allowed at all, tbe remedy being to punish the party chargeable with responsibility for the defect in the street. But in others, this among them, the action is allowed upon condition that the city be first notified of the time and place. This notice is a valuable safeguard for the city, and the courts have never hesitated to require it.

The judgment will be reversed.

All concur.