228 Utah 213 | Utah | 1924
Plaintiff, a minor 8 years of age, was injured by an obstruction while coasting on one of the streets of defendant. This action was brought by his guardian ad litem to recover damages for the injury. The complaint charges the.defendant with negligence in permitting the obstruction to remain in the street. The complaint failed to allege that the claim was presented to the defendant as required by the statute. Comp. Laws Utah 1917, §§ 816 and 817. Defendant demurred to the complaint, and the trial court sustained the demurrer. Judgment was entered dismissing the action, from which judgment plaintiff prosecutes this appeal.
The statutes referred to, so far as material here, read as follows:
Sec. 816. “Every claim against an incorporated city or town for damages or injury alleged to have been caused by the defective, unsafe, dangerous, or obstructed condition of any street, alley, crosswalk, sidewalk, culvert, or bridge of such city or town, or from tbe negligence of the city or town authorities in respect to any such street, alley, crosswalk, sidewalk, culvert, or bridge shall within thirty days after the happening of such injury or damage, be presented to the city council of such city, or board of trustees of such town, in, writing, signed by the claimant or by some person by claimant authorized to sign the same, and properly verified, stating the particular time at which the injury happened, and designating and describing the particular place in which it occurred, and also particularly describing the cause and circumstances of the said injury or damages, and stating, if known to claimant, the name of the person, firm, or corporation, who created, brought about, or maintained the defect, obstruction, or condition causing such accident or injury, and also stating the nature and probable extent of such injury, and the amount of damages claimed on account of the same; such notice shall be sufficient in the particu*591 lars above specified to enable the officers of such city or town to find the place and cause of such injury from the description thereof given in the notice itself without extraneous inquiry, and no action shall be maintained against any city or town for damages, or injury to person or property, unless it appears that the claim for which the action was brought was presented as aforesaid to the city council, or the board of trustees of the town, and that such council or board did not within ninety days thereafter audit and allow the same. * * *”
Sec. 817. “It shall be a sufficient bar and answer to any action or proceeding against a city or town, in any court, for the collection of any claim mentioned in section 816, that such claims had not been presented to the city council of such city, or to the board of trustees of such town, in the manner and within the time in section 816 specified. * * *”
The statutes above quoted and previous statutes relating to the same subject during the last quarter of a century have been controlling factors in numerous decisions by this court. Connor v. Salt Lake City, 28 Utah, 249, 78 Pac. 479; Mackey v. Salt Lake City, 29 Utah, 247, 81 Pac. 81, 4 Ann. Cas. 824; Bowman v. Ogden City, 33 Utah, 196, 93 Pac. 561; Brown v. Salt Lake City, 33 Utah, 222, 93 Pac. 570, 14 L. R. A. (N. S.) 619, 126 Am. St. Rep. 828, 14 Ann. Cas. 1004; Sweet v. Salt Lake City, 43 Utah, 306, 134 Pac. 1167; Dahl v. Salt Lake City, 45 Utah, 544, 147 Pac. 622; Berger v. Salt Lake City, 56 Utah, 403, 191 Pac. 233, 13 A. L. R. 5.
As far as the writer is advised, this is the first case before the court in which there was a total absence of any attempt to comply with the provisions of the statute, except the case of Brown v. Salt Lake City, supra,- in which ease the accident resulted in death. The court held that the statute did not apply. The third paragraph of the syllabus reflects the opinion:
“Tbe statute providing that claims against a municipality for damages arising from a defective street or sidewalk, or through the negligence of the municipality in respect to any street or sidewalk, shall be presented within a specified time after the happening of such injury or damage, etc., does not include damages for negligent death.”
The instant case is also distinguished from the previous cases referred to, in that here the suit is by a minor claiming
Appellant also relies on Bowman v. Ogden City, supra, in which case the plaintiff sent a written communication to the city relating" to his injury. The communication was unverified, but it described the accident, the cause thereof, and the nature of his injury. The communication was in the nature of a demand. The city acted upon the claim and allowed an amount for lost time which was accepted. Payment for the injury was refused and plaintiff sued for damages and obtained judgment. On appeal the contention was made by appellant that the notice of the injury was insufficient under the statute. This court, in disposing of the question, held that the city by its conduct had waived the defect in the notice but that the circumstances showed an accord and satisfaction, and that verdict should have been directed for the city- -Appellant relies on the Bowman Case as holding that the statute was not mandatory but subject to a reasonable interpretation according to the circumstances of the case. We are of opinion that the case is far from holding that the statute is not mandatory. Waiver or estoppel may be found in the face of a mandatory statute. For instance, statutes of limitation ordinarily are mandatory both in form and effect. Nevertheless, they may be waived or the party may be estopped from relying upon them. 17 R. C. L. p. 887.
Appellant also relies on the case of Brown v. Salt Lake City, supra, principally because of the following language .employed by the court on page 233 of the report (33 Utah [93'Pac. 573]) :
“The statute must receive a reasonable construction, and sucli as will make it possible to present a claim.”
“It has been frequently held, that under statutes similar to the foregoing, the presentation of claims falling within the provisions of such statutes is a condition precedent, and unless presented no recovery can be had. We have no disposition to modify the rule so announced, or depart from it.”
Tbe next case relied on by appellant and quoted from at considerable length is that of Sweet v. Salt Lake City, supra. That case merely holds that a person injured may recover damages in excess of those specified in tbe claim presented by him if they are tbe necessary and proximate consequence of tbe injury described in tbe claim presented. Tbe court in that case, however, found that the excess damages claimed were not tbe necessary and proximate consequences of tbe injury described in tbe claim presented, and for that reason held that such damage could not be recovered.
Tbe rule permitting a person to recover damages in excess of those described in tbe claim presented under tbe limitations mentioned in the Siveet Case is both wholesome and just. It is matter of common knowledge that conditions may develop in consequence of an injury that are not known or even conjectured at the time the injury occurred. It would be a harsh rule indeed which would preclude a person who in good faith had attempted to comply with the statute from obtaining relief simply because at the time of presenting his claim he was not fully informed as to the extent of his injury. In such a case some latitude should be allowed by the court in allowing the excess demand. Berger v. Salt Lake City, supra. After all, as we conceive the purpose of the law, when the injured party has presented his claim stating the time, place, cause, and circumstances of his injury and the extent of his damages as far as known to
Appellant, on the authority of the Bowman Case, contends that the defendant waived the objection that the claim was not presented because it is alleged in the complaint that the “defendant at a lawful meeting of its trustees considered and denied said minor’s claim for damages and thereupon gave notice of said denial to the said deponent, the father of said minor. ’ ’ This contention is somewhat novel. Because defendant by its trustees formally passed upon a claim presented after the time expired and denied it, perhaps for the very reason that it was not presented in time; therefore it is contended that defendant waived its right to object that the claim was not presented in time. The logic of such contention is beyond the writer’s limited powers of comprehension.
The last Utah case to which appellant calls our attention is the case of Berger v. Salt Lake City, supra, the most recent
Appellant also relies on Comp. Laws Utah 1917, § 6480, relating to legal disability which prevents the running of statutes of limitation, in which is included persons within the age of majority.
Appellant insists that the Legislature must have had in mind section 6480, supra, when it enacted sections 816 and 817 hereinbefore quoted. No logical reason is given for such contention. If the Legislature, when it enacted section 816, had entirely omitted section 817, it might with some reason be inferred that it intended the general statutes of limitations, together with the exceptions mentioned in section 6480, to apply. But the Legislature went further. It enacted section 817 and thereby enacted a special statute of limitation to apply solely to the matter referred to in section 816. It enacted section 817, and made no exceptions whatever, either on account of age or mental or physical infirmity, and, as before stated, as the right to any damages at all is purely statutory, it can only be availed of when there has been a reasonable effort to comply with the conditions upon which the right is conferred.
As illustrating appellant’s position that the statute in question, though mandatory in form, should receive a reasonable interpretation, his counsel cite the following eases which, it is admitted, support their contention. McDonald v. City of Spring Valley, 285 Ill. 52, 120 N. E. 476, 2 A. L. R. 1359; City of Tulsa v. Wells, 79 Okl. 39, 191 Pac. 186; Walden v. Jamestown, 178 N. Y. 218, 70 N. E. 466; Murphy v. Village of Ft. Edward, 213 N. Y. 397, 107 N. E. 716, Ann. Cas. 1916C, 1040.
The Illinois and New York cases above cited appear to have been decided upon one of Broom’s legal maxims, “the law
Appellant also cites Born v. City of Spokane, 27 Wash. 719, 68 Pac. 386. In that case, however, the city charter, after providing that claims must be filed with the city within a certain time, also provided that if it be impossible for the claimant, owing to either a physical or mental disability, to malee his claim within the time prescribed, literal compliance as to the time limitation will not be required. The plaintiff alleged inability as the result of the injury, and tendered that as his excuse for not presenting his claim on time. The judgment for plaintiff was affirmed. We have no such statute in this state, and for that reason the case has no application here.
Hartsell v. City of Asheville, 166 N. C. 633, 82 S. E. 946, is also relied on by appellant. That ease also was controlled by
Appellant cites numerous other cases not necessary to review, for the reason that they are controlled by statutes different from ours which clearly justify the decisions referred to. Among the authorities cited by appellant is 17 R. C. L. at page 1043. We quote an excerpt from the page referred to which tersely states what we believe to be the correct rule:
“It is provided by statutes in some of the states in which a notice within a limited period is a prerequisite to an action against a municipal corporation that in case of physical or mental incapacity to give notice during that period it may he given within a designated time after the incapacity is removed, hut if there is no such proviso in the statute, it is held by the weight of authority that the court cannot supply it,, and is without jurisdiction to entertain an action for an injury of the specified character when no notice has been given within the specified time, however good the excuse for delay.”
The same page, however, refers to Murphy v. Village of Ft. Edward, supra, which, as before stated, supports appellant’s contention.
The doctrine enunciated in the quotation from R. C. L. supra, is sustained by practically all of the authorities cited by respondent. Peoples v. Valparaiso, 178 Ind. 673, 100 N. E. 70; Touhey v. Decatur, 175 Ind. 98, 93 N. E. 540, 32 L. R. A. (N. S.) 350; Ransom v. City of South Bend, 76 Wash. 396, 136 Pac. 365; and cases cited in the opinion; Baker v. Town of Manitou (C. C. A.) 277 Fed. 232; Shreve v. Cheesman, 69 Fed. 789, 16 C. C. A. 413; Morgan v. City of Des Moines, 60 Fed. 208, 8 C. C. A. 569; Dechant v. City of Hays, 112 Kan. 729, 212 Pac. 682; 28 Cyc. 450; Davidson v. Muskegon, 117 Mich. 454, 69 N. W. 670; McCollum v. South Omaha, 84 Neb. 413, 121 N. W. 438; Ellis v. Kearney, 80 Neb. 51, 113 N. W. 803; Sollenbarger v. Lineville, 141 Iowa, 203, 119 N. W. 618, 18 Ann. Cas. 991; Hay v. Baraboo, 127 Wis. 1, 105 N. W. 654, 3 L. R. A. (N. S.) 84, 115 Am. St. Rep. 977.
It would unduly lengthen this opinion, which is already longer than intended, to undertake a detailed review of the cases cited by respondent. It is sufficient to say that they clearly support the contention of respondent that the statute
“Appellant contends that the statute, properly construed, does not apply to a minor of the tender years and in the physical and mental condition that the appellant is alleged to have been during the time in question. It will be noted that the statute makes no exceptions as to minors, and for this court to write into the plain, unambiguous words of the statute an exception, in so far as it pertains to minors, or in so far as it pertains to persons in the physical or mental condition described in the petition, would be to constitute the court, a lawmaking power instead of a law-interpreting body.*599 Our legislature lias, in. a number of instances, embodied provisions or exceptions in statutes pertaining to minors, and tbe fact that the lawmaking body did not do so in this statute, in view of what appears to be the disposition of the Legislature to make those exceptions where they desire, would confirm the idea that the Legislature did not intend any exceptions of this character in this statute.”
The language quoted is typical of expressions generally employed by the courts in the casts last cited. They not only constitute the overwhelming weight of authority, but, in the opinion of the writer, they are more consonant with reason and the purpose of the statute which peremptorily requires that the claim be presented as therein provided. As frequently suggested in the decisions referred to, there being no exception in the statute itself, it is the duty of the courts to interpret the law as they find it and not resort to judicial legislation, and thereby probably defeat the manifest purpose of the law.
The demurrer to the complaint was properly sustained. Judgment affirmed at appellant’s cost.