147 P.2d 1020 | Mont. | 1944
A city is a creature of statute, and in the absence of constitutional limitations, the legislature may prescribe for it such powers and privileges as it deems best. McClintock v.City of Great Falls,
If this court were to sustain Judge Lynch's theory that notice must be given to the city clerk, then we are compelled to advance the argument that Chapter 122 of the Laws of 1937 imposes an unreasonable regulation upon the plaintiff in this case, to such an extent as to amount to a denial of justice to him, as well as to other pedestrians who might not know of the defect or obstruction in a street or sidewalk over or by which he gets injured. *71
That pedestrian would allege in his pleadings and say in court that he did not know of the defect and he did not see the defect before he was injured; yet, before he can recover for the city's wrongful act (if it was wrongful), that injured person is compelled before he sustains his injury, to give the city clerk a report of the defect by which or from which he is going to be injured in the future. To require notice from those who know nothing of a defective condition is to impose an unreasonable condition precedent to recovery, and which is beyond the legislative power in the face of our constitutional provisions above quoted. Hanks v. Port Arthur (Tex.),
The only question, then, before this court for determination[1, 2] is the proper interpretation of section 5080, Revised Codes of 1935, as amended by Chapter 122 of the Session Laws of 1937. That amendment provides that before any city or town shall be liable for damages to person or to property suffered by reason of any defective sidewalks, "it must first be shown that said city or town had actual notice of such defect or obstruction and reasonable opportunity to repair such defect or remove such obstruction before such injury or damage was received; the city clerk must make a permanent record of all such reported defects and shall report to the city street commissioner immediately upon notice of such defect or obstruction; * * *."
The language "the city clerk must make a permanent record of all such reported defects" apparently dictated the lower court's opinion that the only way the actual notice could be given to the city was through the city clerk. With this view we cannot agree. The construction placed upon this language of the amendment is not justified. At most the provision requiring the city clerk to make a permanent record of the reported defect is an inference that ordinarily the notice be given to the city clerk in the usual course of business. The requirement that he *73 make a record is alone not a conclusive indication of the legislative intention that notice be given the city only through him. The primary purpose of the statute is to assure that actual notice is to be given the city. How that actual notice is to be given was not specified. The question in every case such as this revolves around that question of the actual notice to the city through its officials and that actual notice may be proven by any method through competent evidence. Here the offered proof of notice, both oral and written, to the city engineer would be proof tending to show the notice as required by the statute and it was error on the part of the trial court to exclude it, as it was error on the part of the trial court to enter its judgment upon the theory that the statute required something more than actual knowledge on the part of the city.
It was error to exclude the offered proof, and the judgment is reversed with direction to grant a new trial.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ANDERSON, MORRIS and ADAIR concur.
Rehearing denied May 5, 1944.