Johnson v. City of Winston-Salem

193 S.E.2d 717, 282 N.C. 518, 1973 N.C. LEXIS 1104

• Court: Supreme Court of North Carolina
• Decided: January 26, 1973
• Docket: 76
• Status: Published

Opinions

HIGGINS, Justice.

The plaintiffs’ claim is based on a negligent failure of the city properly to inspect, to discover and remove defects, and to keep in good repair its sewer line along Milton Drive. The evidence indicated the city’s street maintenance crew had caused sand and gravel to accumulate at the point of joinder between the city’s main sewer line and the plaintiffs’ branch line thus causing the back-up and overflow into the plaintiffs’ home. The plaintiffs introduced ample evidence of the resulting damage.

After hearing the evidence, the trial court properly concluded the plaintiffs’ claim was based on the defendant’s tortious failure properly to maintain its sewer line and that the plaintiffs’ claim was never filed with the board of aldermen and was not filed with the mayor until more than nine months after the plaintiffs sustained their damage.

The evidence disclosed that the agents of the sewer department and of the city’s claims department had immediate notice of the plaintiffs’ damages and the facts upon which their claims were based. However, the trial court and the Court of Appeals based decision on the plaintiffs’ failure to give the board of aldermen or the mayor the written notice required by Section 115 of the defendant’s charter, Chapter 232, Private Laws, 1927.

The lawmaking body of the State required that notice of tort claims in writing should be filed with the board of aldermen or the mayor within ninety days of the time the damage occurred. The board of aldermen and the mayor direct the city’s governmental operations. They actually employ hundreds of agents to carry on the city’s activities. Obviously, a requirement that a claim against the city be filed with the board of aldermen or the mayor is a reasonable requirement. They are charged with the duty of considering and passing on the validity of the claims. Notice to other agencies does not comply with the requirements of the law.

In the case of Sowers v. Warehouse, 256 N.C. 190, 123 S.E. 2d 603, this Court discussing Section 115 of the city charter used this language:

“Plaintiff did not plead she had given notice as required by Section 115 nor did she plead any facts tending to show her mental or physical inability to give the required notice. . . .

“Plaintiff’s failure to comply with the requirements of Section 115 of its charter constitutes a bar to her alleged action against the City of Winston-Salem. This was sufficient to require that the court grant the motion of the City of Winston-Salem for judgment of involuntary non-suit.”

The action involved an injury resulting from the defendant’s defective sidewalk.

In Carter v. Greensboro, 249 N.C. 328, 106 S.E. 2d 564, this Court said:

“Ordinarily, the giving of timely notice is a condition precedent to the right to maintain an action, and nonsuit is proper unless the plaintiff alleges and proves notice. (Citing authorities.) However, there is an exception to the rule. The plaintiff may relieve himself from the necessity of giving notice by alleging and proving that at the time notice should have been given he was under such mental or physical disability as rendered it impossible for him by any ordinary means at his command to give notice; and that he actually gave notice within a reasonable time after the disability was removed. (Citing authorities.)”

In addition to the cases cited in Sowers and Carter, see the following: Webster v. Charlotte, 222 N.C. 321, 22 S.E. 2d ; Foster v. Charlotte, 206 N.C. 528, 174 S.E. 412; Dayton v. Asheville, 185 N.C. 12, 115 S.E. 827; Pender v. Salisbury, 160 N.C. 363, 76 S.E. 228.

The statute and case law of North Carolina provide that as a part of a cause of action founded in tort against a municipality, the complaint must allege and the evidence must disclose that a written claim signed by the plaintiff or his attorney be filed either with the board of aldermen or the mayor of the city within ninety days after the cause of action accrued. Otherwise the action is barred and will be dismissed. Anything short of a written claim signed by the plaintiff or his attorney and filed with the board of aldermen or the mayor within the ninety days, required a dismissal of the action.

In Pender v. Salisbury, supra, the plaintiff’s intestate was thrown from a wagon as the result of a defect in the street. The required notice of the claim for the wrongful death was not given. The plaintiff sought to supply the defect by showing the mayor of the city was actually present at the time of the accident and had first hand information of the injury. This Court said: “ ‘The municipal officers of a town cannot waive any statutory requirement as to notice of claim imposed for the protection of the municipality.’ ”

Although the evidence in this case was sufficient to disclose that the claim agent and the attorney of the city had first hand information of the plaintiffs’ damage and the cause of it, this knowledge was not sufficient to supply the requirement that a written claim be filed with the board of aldermen or the mayor.

The statute and the decided cases do not permit the court to repeal the plain wording of the requirement that notice in writing be given to the named officials within ninety days from the injury. Relaxation of the rules is within the jurisdiction of the agency that makes them — that is the General Assembly. The legislative hall — not the courthouse — is the proper place to change the rule. The stability of court decisions is of great value. Thus, we feel required to hold that the trial court in entering the judgment dismissing the action, and the Court of Appeals in affirming the judgment, acted within the requirements of law. Nothing need be added to the opinion of the Court of Appeals on other questions discussed in the briefs. Though we sympathize with the plaintiffs in their loss, we do not feel at liberty to disregard the statute and the decided cases. Hence, we conclude that the judgment of the Court of Appeals should be

Affirmed.