Ray v. City of Wichita

27 P.2d 288, 138 Kan. 686, 1933 Kan. LEXIS 262

• Court: Supreme Court of Kansas
• Decided: December 9, 1933
• Docket: No. 31,358
• Status: Published

Opinions

The opinion of the court was delivered by

Johnston, C. J.:

This case involves the interpretation of R. S. 12-105, which provides in substance that no action can be maintained against a city on account of injury to- person or property unless the person or corporation injured shall within three months thereafter 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.

In her petition Stella Ray alleged that at 10:30 a. m. on March 7,1932, she was injured when she stepped into a hole in the sidewalk, six inches deep, twelve inches wide, and eighteen inches long, which she did not see because it was covered with loose snow, and by reason of which she fell and suffered serious injuries for which she sought damages caused by the negligence of the city. As seen, the injury was sustained.at 10:30 a. m. on March 7,1932, and her claim was filed with the city clerk on June 8 following, the hour not stated.

On a demurrer the court held that the notice was served in time and overruled the demurrer. The city appeals and contends that the time commenced to run on March 7,1932, and that June 7, 1932, was the last day in the three-months period.

On the other hand, the plaintiff contends that under the statute for the computation of time she had until June 8, the full three-months period, to file her claim.

In the statute relating to claims against a city for damages, it is provided that:

“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 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. Such city shall have thirty days from the time of the filing of such statement to make settlement with the claimant if it so desires.” (R. S. 12-105.)

How shall the three-months period given for the filing of the claim be computed? A statutory rule for computation of time has been prescribed by the legislature. It is:

“The time within which an act is to be done shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded.” (R. S. 60-3819.)

It would seem that there should be little difficulty in applying so simple a rule to a stated period of time within which an act should be done. But the cases cited and others found in the books show different views as to the counting of time. This has been expressed by Lord Mansfield in Pugh v. Duke of Leeds, 2 Cowper’s Reports, 714. After reviewing many conflicting decisions Lord Mansfield said:

“Thus stood all the authorities down to the year 1743; a period of two hundred years; not much to the honour of the learned in Westminster-hall, to embarrass a point which a plain man of common sense and understanding would have no difficulty in construing.” (p. 722.)

In determining the question he said, among other things, that consideration should be given to the context and subject matter and it should be construed so as to effectuate the deeds of the parties and not to destroy them.

To avoid as far as possible difficulty in the counting of time, the statute quoted was enacted. In the early case of Hook v. Bixby, 13 Kan. 164, where the statute of limitations was involved in the bringing of an action on a claim where lumber was sold on the 19th of February, 1870, on which there was a three-year limitation to sue, it was held under the statute for computation that the plaintiff had until February 19, 1873, in which to commence his action. This was applied on the theory of excluding the first day and including the last, but not by excluding the first and last.

In another case, English v. Williamson, 34 Kan. 212, 8 Pac. 214, the question was again considered where there had been a sale for taxes and that redemption might be made within three years from the date of sale. The sale was made on September 4, 1878, and the statute provided that redemption may be had at any time within three years from the date of sale. Under the statute it was held that plaintiff had all of the 4th day of September within which to redeem his lots from taxes, and that in computing the three-years time the day of sale should be excluded. As the last day of the three-year period was on Sunday, he had the right to redeem until September 5,1881. It was said:

“If Sunday in such a case is not excluded, the owner of the property would not have the full three years given to him by statute within which to redeem his property from the taxes; while the statutes in express terms give him that time, and more than that time. It is three years and until the execution of the tax deed which is given to him by the statute within which to redeem his land from the taxes.” (p. 216.)

In that case the redemption notice required the owner to redeem on September 3, 1881, and hence it was held to be erroneous and did not give him the full time to redeem his property from the taxes. The notice was therefore held to be erroneous.

In Parkhill v. Town of Brighton, 61 Ia. 103, the question arose on. the taking of an appeal which was to be perfected within six months after judgment. The judgment was rendered March 30 and was perfected September 30. As March had thirty-one days it was contended that the appeal had been taken more than six months and was more than the time granted for appeal. The court held that the calendar months are to be computed by reckoning from a given day to a day of the corresponding number, if there is one, and that from the 30th day of March to the 30th day of September was exactly the time given. (See, also, Glore v. Hare, 4 Neb. 131; De Bang v. Scripture, 168 Mass. 91; Briggs v. City of Geneva, 90 N. Y. Supp. 858; Lester v. Garland, 15 Yesey, Jr., 248.) Some of the cases cited were decided on general principles and not on a statute fixing computation of time.

The court concludes that as the accident occurred March 7 and that as the claim statement was not presented and filed with the city clerk until June 8 the claim was not filed within three months, but was one day late, and hence the judgment must be reversed. It is so ordered.