614 S.W.2d 765 | Mo. Ct. App. | 1981
Plaintiff sought damages from defendant, a city of the third class, for injuries received when she fell on a sidewalk. Summary judgment was granted against plaintiff because she did not properly serve upon defendant’s mayor the notice required by § 77.600, RSMo 1978.
Appellant does not question the constitutionality of § 77.600. Similar statutes have been recently questioned in other jurisdictions. See Herman v. Magnuson, 277 N.W.2d 445, 452-454 (N.D.1979); ANNOTATION “MODERN STATUS OF THE LAW AS TO VALIDITY OF STATUTES OR ORDINANCES REQUIRING NOTICE OF TORT CLAIM AGAINST LOCAL GOVERNMENTAL ENTITY”, 59 A.L.R.3d 93 (1974).
Defendant has adopted the city manager form of government. §§ 78.430-.640, RSMo 1978. Section 77.600 applies after that adoption unless it is “inconsistent” with the statutory sections providing for that form of government. § 78.440, RSMo 1978. We do not think it is inconsistent. Under the city manager form of government there is a mayor who has certain specified duties. § 78.560, RSMo 1978. There is no provision allowing for or requiring service of notices upon the city manager that might otherwise be served upon the mayor.
Other than the statutory contention, there is no claim here that the mayor had designated the city manager as her agent upon whom such notices could be served. Plaintiff did not comply with § 77.600; and while the wisdom of the statute can be questioned, it is our duty to follow it.
The jdugment is affirmed.