Wagner v. Board of County Commissioners

176 P. 140, 103 Kan. 719, 1918 Kan. LEXIS 364

• Court: Supreme Court of Kansas
• Decided: November 9, 1918
• Docket: No. 21,740
• Status: Published

Opinions

The opinion of the court was delivered by

Burch, J.:

The plaintiffs sued the defendant in separate actions for damages for personal injuries sustained on account of a defect in a highway. The actions were tried together, but separate verdicts were returned, on which judgments were entered for the defendant. The plaintiffs appeal.

A culvert was placed in the highway by the county, through the agency of men employed for the purpose. The evidence for the plaintiffs was that the work was. negligently done, and a depression resulted which rendered the highway unsafe for travel. The chairman of the board of county commissioners was admittedly without notice of the defect until after the plaintiffs were injured. The sple question now material was raised by a request for an instruction that if the culvert were constructed and the highway were defective as stated, the county would be liable for resulting injuries regardless of notice.

The argument in support of the instruction, which was refused, is that a distinction founded on good reason should be drawn between defects in the highway created through the agency of the county, as in building a bridge, putting in a culvert, or repairing a road, and defects arising without active participation of the county, as by use, accident, action of the elements, and.the like. The conclusion is that with respect to defects of thé first class the county should rest under the same liability as a city for negligent street work. The difficulty with this view is, that whatever ground may have existed for making the distinction, the legislature did not make it in the statute, which reads as follows:

“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may -recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that- is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had 'notice of such defects for at least five days prior to the time when such damage was sustained; and in othei; cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect.” (Gen. Stat. 1915, § 722.)

Notice to the individual specified, for the specified length of time, is a condition precedent to liability, and to hold otherwise would be,- not; to interpret, but to emasculate the statute. In this instance the knowledge and participation of the chairman of the- board was limited to contracting for the improvement. He had no notice in fact of the defect, and there must be notice to him or the county is not liable. Assuming that the workmen who installed the culvert should be held to notice of the defective condition of the highway arising from their negligence, they are not the persons designated in the statute; and the only means by which the statutory condition to liability might possibly be fulfilled would be to bind the chairman by imputed or implied or constructive notice. Under the uniform decisions of this court for so long a time that presumably the legislature has accepted them as correctly reflecting its intention, this cannot be done.

It is true that in the case of Reading Township v. Telfer, 57 Kan. 798, 804, 48 Pac. 134, the court, speaking by Chief Jus-/ tice Doster, said that the statute remedied a defect in the common-law by bringing within the operation of the law of negligence a class of cases which had not theretofore been actionable, and declared as to counties and townships what had always been the law with respect to cities. The court, however, was discussing the subject of the burden of proof of contributory negligence, and not notice, it appearing in the case that the township trustee had actual knowledge of the defect in the road and contemplated repairing it.

The opinion in the Heading Township case was filed on March 6, 1897. On April 10 of the same year the case of Murray v. Woodson County, 58 Kan. 1, 48 Pac. 554, was decided. In the Woodson County case the subject of notice was material, and the court said, Chief Justice Doster writing the opinion:

“The statute charges the county with liability only where the chairman of the board has notice of the defect in question. This statute ex-eludes the idea of imputable or constructive) notice. The case is unlike those cited by counsel for the plaintiff in error, in which a municipality is liable upon notice to its governing authorities in their corporate capacity.” (p. 3.)

In the case of Vickers, v. Cloud County, 59 Kan. 86, 89, 52 Pac. 73, the writer of the opinion spoke of the statutory withdrawal of immunity of counties from liability, and said they were placed on the same plane with private corporations and individuals, but in that case the subject of notice was not involved. An objection to the introduction of evidence under the petition was sustained. The petition alleged knowledge of the defects complained of, and the question was whether or not the county was liable to one who was injured while under the defective bridge and not traveling upon it.

In the case of Hari v. Ohio Township, 62 Kan. 315, 62 Pac. 1010, agitation of the subjects of the nature of the liability and the character of notice was put at rest by the following definítive declaration:

“Cases of constructive notice to the governing authorities of cities of defects in streets and sidewalks shed no light on the question. Municipal corporations are under a common-law obligation to respond in damages for injuries occasioned by such defects, and they are therefore chargeable with what the common law esteems as notice. Quasi corporations, such as townships, are liable only as made so by statute, and therefore the statutory kind of notice must be given.” (p. 318.)

The petitions of the plaintiffs would have been fatally defective without proper allegations of statutory notice. (Higman v. Quindaro Township, 91 Kan. 673, 139 Pac. 403.) What "the plaintiffs were required to allege they were required to prove, and the requested instruction would have relieved them from the consequences of failing to prove an indispensable element of their causes of action.

The judgments of the district court are affirmed.

(Piled December 7, 1918.)