Sollenbarger v. Incorporated Town

119 N.W. 618, 141 Iowa 203

• Court: Supreme Court of Iowa
• Decided: February 12, 1909
• Status: Published

Opinion

Ladd, J. —

Viola Herron resided on the south side of West Third Street in the defendant town, and in the first house east of Jones Street. She had put in a garden on a lot on the north side of the street, and at two or three o’clock in the afternoon of June 8, 1906, started with an armful of pea sticks from her back yard to go across to the garden. Upon reaching the walk on 'the south side of the street she stepped on it, a loose board flew up, tripping her, and she fell. To her claim for damages the defendant interposes but two objections on this appeal: (1) That the action is barred by the statute of limitations; and (2) that she was guilty of negligence contributing to her injury. Only the first part of these, need be considered. The action was not begun until October 18, 1906, more than three months subsequent to the injury, so that, “unless written notice specifying the time, place and circumstances of the injury shall have been served upon” the town “within sixty days from the happening of the injury,” the action is barred. A paper in words following was delivered to the mayor and members of council in session on July 11, 1906.

Lineville, Iowa, July 11, 1906.

Town of Lineville, Iowa, to Mrs. Joseph Herron, Dr.

To damages resulting from injuries received from falling on defective sidewalk, on West Third

Street, Lineville, Iowa, June 8, 1906. $158.00 More particularly itemized as follows:

To 24 days’ time during which she was absolutely unable to perform any labor, or her usual vocation . $24.00

To doctor’s bill for treatment and medicine.... 10.00

To damages for suffering and pain as result of injuries. 100.00

To 8 weeks’ time at one-half pay. .■ 24.00

Total. $158.00

1. Municipal corporations: sidewalk accident: notice: description of place. The sufficiency of this notice is challenged on three grounds: (1) It was not signed; (2) it does not sufficiently describe the place where the injury occurred; and (3) it fails to state the circumstances of v ' injury.- The first objection; omission of signature, is disposed of by Neely v. Mapleton, 139 Iowa, 582. phce j, a<acrile(i in the notice as “on West Third Street, Lineville, Iowa.” This street was three-fourths of a mile in length. Manifestly the notice alone was altogether too general to indicate the place of the accident. Courts have repeatedly de-' elared that no more than reasonable certainty is required, but that much ought not to be dispensed with. To exact less would defeat the very purpose of the statute in many cases and in all annul the requirement that the notice be in writing. Though its object is to apprise the authorities of the location of the defect in the street, and of the time and circumstances of the injury, to the end that they may investigate while the facts are fresh, nevertheless it is a condition essential to avoid the bar of the statute, and to be.effective must be in writing. Giles v. City of Shenandoah, 111 Iowa, 83; Sachs v. Sioux City, 109 Iowa, 224. Undoubtedly tbe description of the place as contained in the notice may be aided by proof of conditions as they exist, but the better-considered cases are to the effect that the notice must be sufficiently definite in itself to enable a person of ordinary capacity, with knowledge of the physical condition of the streets, in the exercise of reasonable diligence, to locate the place of the injury. Thus in Barribeau v. City of Detroit, 147 Mich. 119 (110 N. W. 512) the court held that “to be legally sufficient, a notice must contain a description of the place of the accident so definite as to enable the interested parties to identify it from the notice. . . .” This rule permits a construction. of the statute provision which does not emasculate it, and' one which is in accord with the opinions of the courts. In New Hampshire the rule is thus stated: “If the statement so designates the place that the officers of the town, being men of common understanding and intelligence, can by the exercise of reasonable diligence and without other information from the plaintiff find the exact place where it is claimed the damage was -received, it is- in this respect sufficient, becatfse it fully answers the purpose of the statute,” and whether, this may be done is ordinarily a question for the court. Carr v. Ashland, 62 N. H. 665.

In Maloney v. Cook, 21 R. I. 471 (44 Atl. 692) the place was described as “the southerly side of Church Street” in Woonsocket. The street was a quarter of a mile long, and the notice was adjudged insufficient, even though it appeared that within the sixty days within which the notice was required to be served plaintiff’s counsel explained to the committee on claims particularly the place where the accident happened, and the city was fully informed thereof, • the court saying that: “If the defect in the notice required by that statute could be cured in this way, we agree tbat under tbe evidence it would now be sufficient. But as tbe giving of tbe notice provided for is a condition precedent to tbe beginning of tbe action, for tbe court to say tbat it can be amended in this way would be to render tbe statute of no avail. We feel compelled to bold, therefore, tbat tbe notice was insufficient.” In Shea v. Howell, 132 Mass. 187, tbe notice that the injury was caused by a defect in a named street was held insufficient, tbe court saying: “It would violate tbe provisions, and defeat tbe purposes of tbe statute, if the plaintiff were permitted to supply tbe deficiencies of tbe written notice by proof tbat tbe city or its officers had oral information from her, or from any other source, of the time, place and cause of her injury, and tbe court rightly rejected tbe evidence offered by her for tbe purpose. Tbe notice can not be partly written and partly oral. It must be wholly in writing, ■ and its sufficiency is to be determined by tbe court.” To tbe same effect see Sowle v. City of Tomah, 81 Wis. 353 (51 N. W. 572); Trost v. City of Casselton, 8 N. D. 534 (79 N. W. 1071), and Underhill v. Town of Washington, 46 Vt. 771, where it is said: “The statute is mandatory in form, and declares tbat no action shall hereafter be maintained in any court of this State .unless tbis preliminary act shall be done within the time specified. Tbe place where tbe injury occurred is a cardinal and special requirement of tbe statute; and, if tbis requirement can be supplied by parol evidence, then may tbe statute be annulled and utterly disregarded. We think parol evidence not admissible to supply a legal requirement of a written notice.” Tbe statutes exacting notice differ somewhat from ours in some States, in that the notice is a condition precedent to tbe maintenance of tbe action, but tbe purpose is not different from tbat in statutes like tbat of tbis State. . • ■

2. Same. ■ ■ Tbe cases relied on by appellee, .save one¿ do not.support the-'contention that the notice may be aided, by oral evidence that the municipal authorities were advised orally of the place where the accident happened. In Lincoln v. O’Brien, 56 Neb. 761 (77 N. W. 76) the notice described the place where complainant stepped into a hole as on the north side of Q. Street between Eighteenth and Twentieth Streets, and as the only holes in the walk were in front of a vacant lot between Eighteenth and Nineteenth Streets, the court held the notice sufficient, saying that “in examining the rather numerous cases on the subject certain principles will be found to run through all. One is that it is sufficient, as above stated, if the place be so described that from that description it can be identified with reasonable diligence. Another is that the sufficiency of the notice is not to be determined from its terms alone, but in the light of extraneous evidence of the situation and surroundings.” A like decision is Connor v. Salt Lake City, 28 Utah, 248 (78 Pac. 479). Some reliance is placed on Owen v. City of Ft. Dodge, 98 Iowa, 281, where extrinsic evidence was received, not to supplement the notice, but to show that the city was not misled by it. As there said, it need not point out the exact spot, but if, notwithstanding inaccuracies, it contains the necessary information to enable the officers of the city to locate the place, it is good, and that they did find it is mentioned merely as a fact confirming the sufficiency of the notice. In Rusch v. City of Dubuque, 116 Iowa, 402, evidence that defendants investigated the very walks described in the notice was held sufficient to obviate any prejudice from failure “to locate the place within the few feet mentioned.” In Buchmeier v. City of Davenport, 138 Iowa, 623, the jdace 'was described “as a crossing at Ninth and Warren Streets,” and as it did not appear that there was more than one crossing at the intersection of these streets, it was held that the trial court erred in directing the jury that the notice was insufficient. The description was adjudged sufficient if, when applied to existing conditions 'as proven- on tbe trial, it would enable the officers to locate the place of the accident. The possible exception referred to is Cook v. Topeka, 75 Kan. 534 (90 Pac. 244), where description of one place was allowed to 'be supplemented by oral evidence that the officers ascertained, on investigation in pursuance of the notice, that the accident happened at another, whether sound, is not involved in this case.

3. Same. Appellee argues that as only one loose plank in the walk on either side of the street was proven, this with the notice was sufficient to identify the place. Within reasonable limits the argument may be good, ag -when the side of the street is given and the place is within a block or two, as in City of Lincoln v. O’Brien, supra, and Connor v. Salt Lake City, supra, but the municipal officers are not bound to look up one side and down the other of a street three-fourths of a mile long to ascertain whether there is more than one point where a plank may be loose in order to ascertain the possible place intended by a defective notice. The mere statement indicates that a notice requiring this is not reasonably certain.

4 Same-not¡c'ee-nhowf determined. It is urged, however, that the issue was for the jury, and this is sometimes so when the notice, in connection with proof of the situation, and surroundings of the locality in connection with the description, raises ah issue as to whether the place is pointed out with reasonable certainty; thus where the language of the notice is of doubtful meaning, and honest minds might differ concerning it (Carr v. Ashland, 62 N. H. 665), or where the notice does not purport to accurately locate the place, but generally, as between two near points, City of Lincoln v. O’Brien, 56 Neb. 761 (77 N. W. 76), or on a bridge of considerable length (Lyman v. Hampshire County, 138 Mass. 74). In cases of this kind, and perhaps others, it may be proper to permit the jury under suitable instructions to say whether the notice given when aided by inquiries suggested therein was sufficient to enable the city authorities, acting with reasonable diligence, to locate the place. The extrinsic evidence relating to the street in the case at bar left the notice entirely indefinite and uncertain as to locality, so that there was no issue to be submitted. It went to the jury on the theory that if the paper in connection with the oral explanation of plaintiff’s agent, made to the counsel of the defendant when the paper was presented, pointed out the place with reasonable certainty, this would be sufficient compliance with the provisions of the law. This was tantamount to saying the notice might be partly oral and partly in writing, notwithstanding the requirement of the statute that it be in writing.

Because of there being no sufficient notice, the cause of action was barred by the statute of limitations, and a verdict for defendánt should have been directed. — Reversed.