Barribeau v. City of Detroit

147 Mich. 119 | Mich. | 1907

Ostrander, J.

(after stating the facts). The objections to the notice are (1) that the cause of the injury —the defect in the sidewalk — is not sufficiently stated; (2) that the place where the injury occurred,is not located with sufficient certainty.

1. In Oesterreich v. City of Detroit, 137 Mich. 415, the notice set out that claimant “suffered an injury by reason of a defective sidewalk’’and that “the cause of the injury was a defect in the sidewalk laid along Biddle street at said place,” describing the place. The notice was held to be sufficient. In Tattan v. City of Detroit, 128 Mich. 650, the notice stated the cause of the injury to be “by my falling on a defective sidewalk.” These cases must be held to rule the present case, on this point, unless it can be said that, because of a more precise description of the place of the injury, in each of those cases, the statement of the cause of the injury was aided and made sufficiently certain. In the case first above cited, the place was described as at a certain point, on a certain side of a certain street, between two certain streets, named, and “about one hundred feet westerly of” one of said streets. In the Tattan Case, after stating that the cause of the injury was “falling on a defective sidewalk,” the notice proceeds:

“Said defective sidewalk was * * * on the south side of Cherry street, between Sixth and Seventh streets, and extending from Seventh street to the first alley east of Seventh street.”

It is not made a ground of the decision, in either case, that the statement of the cause of injury was aided by the description of the place of injury. It is apparent, however, that in each case it was, to some extent, so aided, by the precision of statement used to designate the place.

2. The learned trial judge, in delivering his opinion, stated:

“There are four corners at Howard and Twenty-First streets, not only the street crossings but also the walks in front of the lots at the corners which might be covered by this designation of the location. There are the city crossings as well as the walks in front of the lot. By crossings I mean not only the street crossings, but also the sidewalks built on the corners, in the angles between the extended lines of the front and side of the corner lots. By the walks in front of the lot I mean the walks abreast of the lots within the side lines of the lot extended.”

The truth of the facts is not questioned. Counsel for plaintiff are undoubtedly correct in saying that, in a given case, a description of the most general character, when applied to the ground, may locate the place with the utmost exactness (Carr v. Ashland, 62 N. H. 665), and in such a case the notice itself might seem to be defective, when, aided by intelligent application of the facts stated, by testimony, or by judicial cognizance, it would be found to be precise and definite. See, also, City of Lincoln v. O'Brien, 56 Neb. 761; Connor v. Salt Lake City, 28 Utah, 248; Harder v. City of Minneapolis, 40 Minn. 446. The rule in New Hampshire is, in Carr v. Ashland, 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 because it fully answers the purpose of the statute. Whether upon the' information contained in the statement the place could be found by the exercise of reasonable diligence is a question of fact, to be determined upon the evidence by the court at the law term.”

The rule adopted by some of the courts to the effect that the sufficiency of the notice must be determined in the light of extraneous evidence showing the situation and surroundings of the place sought, upon the trial, to be proved to be the place of the injury, ought not to be adopted without restrictions. The requirement that a notice be given is not alone for the purpose of affording the officers of the city opportunity for investigation. It is also for the purpose of confining the plaintiff to a particular “ venue ” of the injury. In determining the sufficiency of the notice, excepting perhaps as to the time of the injury, the whole notice and all of the facts stated therein may be used and be considered to determine whether it reasonably apprises the officer upon whom it is required to be served of the place and the cause of the alleged injury. The nature of the defect stated may aid in locating the place, and the place may be stated with such particularity that a very general statement of the defect (cause of the injury) may be aided. Sargent v. City of Lynn, 138 Mass. 599. But 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 itself. Benson v. City of Madison, 101 Wis. 312; Carr v. Ashland, 62 N. H. 665; Larkin v. City of Boston, 128 Mass. 521; Rogers v. Inhabitants of Shirley, 74 Me. 144; Lee v. Village of Greenwich, 48 App. Div. (N. Y.) 391. This rule permits a construction of the statute provision which does not emasculate it and one which is in accord with the opinions of this court in Brown v. City of Owosso, 126 Mich. 91; Tattan v. City of Detroit and Oesterreich v. City of Detroit, supra. When parol evidence is required to determine both the place and the nature of the defect, a reasonable notice has not been given to the city.

There is in this case no quéstion of waiver of a proper notice, and it is clear, from the allegations of the declaration, that no fair attempt was made to give to the corporation counsel the notice which the charter contemplates shall be given. The court below reached a right conclusion, and the judgment is affirmed.

Grant, Blair, Montgomery, and Hooker, JJ., concurred.