182 P. 117 | Mont. | 1919
delivered the opinion of the court.
This action was instituted to recover damages for personal injuries alleged to have been suffered by plaintiff as the result of a fall upon an ice-covered sidewalk.
1. The trial court excluded the notice given to the city, and granted a nonsuit. Plaintiff appealed from the judgment entered in favor of the city, and presents the court’s ruling in excluding the notice as the principal ground for a reversal.
The notice given to the city states that the injuries were received “on or about the twenty-second day of January, 1916,” while plaintiff’s evidence disclosed that the accident occurred on January 24: It was because of this discrepancy that the notice was excluded.
Counsel for appellant insists that the statute should be construed liberally, and that substantial compliance with its provisions is all that should be required, in the absence of a showing that the city was misled to its prejudice. If the statute dealt with the rights of individuals inter sese, counsel’s contention could scarcely be questioned; but when it is sought to apply that rule of construction to a statute governing the liability of a municipality, the argument in its favor runs counter to certain fundamental principles.
A city of this state is one of the governmental agencies of the
Before any liability whatever attaches for injuries resulting
With these elementary rules in view, can it be said that a
A like provision is found in the statutes of nearly every state, and it is held quite uniformly that the notice must state accurately the time when the injuries were received. And this construction is not unreasonable. The claimant is in a better position than the city to know when his injuries were received, and the obvious purpose of the statute is to require him to give
The statute means just what it says. The notice must state the time when the injuries were received, and since our Code takes •no account of the fractional parts of a day in a case of this character, the notice must state the day upon which it is claimed that the accident occurred. The statute prescribes no particular form of notice, and mere informalities would not vitiate a notice, but the statement of the time and place of the accident is made a matter of substance, not merely a matter of form, and the courts are not authorized to change the statute. In support of these conclusions a few only of the numerous decided cases will be cited. (McHenry v. Kansas City, 101 Kan. 180, 165 Pac. 664; Peck v. Fair Haven etc. Co., 77 Conn. 161, 58 Atl. 757; Weisman v. New York City, 219 N. Y. 178, Ann. Cas. 1918E, 1023, 114 N. E. 70.)
It is not an answer to say that the city officials obtained correct
Neither can appellant invoke the aid of section 6585, Kevised
The court did not err in excluding the notice tendered in this case.
Several witnesses for defendant were in attendance upon the
The memorandum of costs was prima facie evidence of the
The judgment is affirmed.
Affirmed.