24 N.W.2d 232 | Minn. | 1946
The allegations of the complaint disclosed that no notice of claim for damages had been served upon defendant within the 30-day period required by Minn. St. 1941, §
"Every person who claims damages from any city, village, or borough for or on account of any loss or injury sustained by reason of any defect in any bridge, street, sidewalk, road, park, ferry-boat, public works, or any grounds or places, or by reason of the negligence *181 of any of its officers, agents, servants, or employees, shall cause to be presented to the common council or other governing body, within 30 days after the alleged loss or injury, a written notice, stating the time, place, and circumstances thereof, and the amount of compensation or other relief demanded. No action therefor shall be maintained unless such notice has been given; or if commenced within ten days thereafter, or more than one year after the occurrence of the loss or injury."
Plaintiff contends, however, that the complaint contains allegations sufficient, if proved, to estop defendant from setting up plaintiff's failure to serve such notice as a defense, and to establish that, by its conduct, defendant had waived its right to insist upon such notice. The allegations in the complaint relied upon to support this contention are as follows:
"That from and after the time of said fall, the plaintiff was confined to the Hibbing General Hospital for hospital care and treatment for a long time, and during said time the plaintiff sent friends to interview and see the city officials of the City of Chisholm and the city attorney in order to be advised what, if anything, he should do in order to protect his interests and particularly his claim for damages; that thedefendant city by and through its officials and the cityattorney represented to the plaintiff that his case would betaken care of, and that as soon as plaintiff was able to leavethe Hibbing General Hospital, the city ambulance would take himto the Buhl Hospital, and that it would not be necessary forthe plaintiff to do anything further to protect his claim, andthis plaintiff, relying upon said representations whichdefendant's agents knew would be communicated to the plaintiff,and upon which plaintiff did rely, by reason thereof neglectedto furnish or to serve upon the defendant city the 30-daywritten notice; that by reason thereof the defendant, City ofChisholm, is estopped to assert the failure of this plaintiffto furnish said notice, and the failure to furnish said noticewas excused and waived by defendant by reason of saidcircumstances." (Italics supplied.) *182
Defendant asserts that the officials of the city are without power to waive the statutory provision referred to, and that, in any event, the complaint is defective in failing to allege that the acts relied upon to establish estoppel were acts performed by authorized city officials acting in their representative capacity on behalf of defendant. There is no allegation that plaintiff was prevented from giving the notice because of physical or mental incapacity resulting from his injuries, and that issue is not before us. 38 Am. Jur., Municipal Corporations, § 703.
1. We have consistently held that before a party may bring action against a municipality for injuries alleged to have occurred as a result of its negligence he must first strictly comply with the foregoing statute requiring presentation within 30 days from the date of such injuries of written notice to the city council or other governing body of such municipality. See, Olson v. City of Virginia,
2. The majority of courts hold that the governing body of a municipality, even when acting in its official capacity on behalf of such municipality, cannot waive the written notice required by statute or charter as a condition precedent to an action against the municipality for personal injuries alleged to have arisen as a result of its negligence in the maintenance of its sidewalks or highways. Grambs v. City of Birmingham,
"* * * It is insisted in behalf of the appellant that the defendant waived the requirements of the statute that written notice should be served within the time provided by law, and that the law itself is merely directory. It appears to us that this contention cannot be allowed to prevail, because the law is, by its express terms, mandatory. It absolutely prohibitsthe bringing of any suit after six months, unless the writtennotice is served within ninety days after the injury. There isno room for any other construction. The theory upon which theargument for appellant is based is that the city council waivedthe right to the service of a notice. It could not waive it. The plaintiff omitted to observe a provision of the statute which absolutely required her to give written notice. It is true, as claimed by appellant, that insurance companies may waive proofs of loss, even though they be required by statute. So parties may waive exemptions, homestead rights, and the statute of limitations; but no plaintiff in a suit can disregard an absolute provision of a statute without the observance of which no action can be maintained." (Italics supplied.)
In a few jurisdictions courts have held that under certain circumstances the governing body of a municipality may waive the requirement or be estopped from asserting as a defense claimant's failure to give such a notice. See, Draper v. Village of Springwells,
In Draper v. Village of Springwells, supra, the basis of the decision is set forth as follows (
"* * * The authorities in this State * * * establish, we think, that the absolute denial of liability by defendant's council on the sole ground that plaintiff was guilty of contributory negligence made within the time when plaintiff could have filed a technically perfect claim amounts to a waiver of the filing of a technically perfect claim in all regards complying with the charter provisions."
There, the action relied upon to establish waiver or estoppel was taken by the city council at a formal meeting at which all its members were assembled and which the court held established a regular meeting, even though the city clerk failed to record the proceedings.
The Michigan court in prior decisions has held that acts similar to those alleged here are not sufficient to create estoppel or establish waiver. Thus, in Wilton v. City of Detroit,
Cawthorn v. City of Houston (Tex.Comm.App.)
3. The rule appears to be well established, even in those jurisdictions which hold that under proper circumstances the governing body of a municipality may waive the statutory notice, that the actions relied upon to establish such waiver or estoppel must be the formal action of its governing body acting in its representative capacity at a regular meeting, as distinguished from the isolated and unauthorized acts or conduct of its individual officials or representatives. See cases cited supra, and Hoyle v. Town of Putnam,
4. Likewise, it has frequently been held that actual knowledge by the governing body of a municipality of all facts required to be set forth in the notice does not supply the omission to file such notice or excuse the failure of the claimant to meet such statutory or charter requirement with respect thereto. City of Rushville v. Morrow,
It has also been held that, where the acts relied upon to establish waiver or estoppel take place after the statutory time for filing notice has expired, any action or conduct of the municipal officials cannot revive the action barred by the failure to file the required notice. See, Holtham v. City of Detroit and Cole v. City of Seattle, supra; Miller v. Village of Birmingham,
5. Under the authorities cited, the order of the trial court must be reversed. The complaint clearly indicates that the acts or conduct relied upon to establish waiver or estoppel were not the acts of the governing body acting as such in its representative capacity, but rather the isolated and unauthorized acts of its city attorney or individual officials, and, as such, not binding upon defendant.
Reversed.
