211 N.W. 583 | Iowa | 1926
In her petition Nora B. Luke, the appellee, alleges that she sustained personal injuries by reason of defective streets in the appellant city.
On the 8th day of April, 1925, she filed with the city clerk of the city of Keokuk her verified statement of claim, the material part of which, for the purpose of this appeal, is as follows:
"Notice is hereby given that the undersigned Nora B. Luke claims damages from the city of Keokuk in the sum of $5,000 on account of injuries sustained by her from a fall upon the walk and curb in said city of Keokuk, located on the northerly side of Main Street between Third and Fourth Streets in front of a building known as 321-23 Main Street, said fall having occurred on the evening of March 22d."
This is followed by a statement of the circumstances of the fall, and a detailed description of the injury resulting. The statement also sets out certain grounds of negligence.
To the petition, based on the verified statement, the appellant filed a demurrer, the grounds of which are as follows:
"(1) Because, under the statutes of the state of Iowa, it is the condition precedent to the maintenance of this action that a verified statement of the time of injury shall be presented to the council or filed with the city clerk within 1. MUNICIPAL 30 days after said alleged injury, and the CORPORA- petition shows on its face that no statement was TIONS: presented to the council or to the clerk. (2) actions: Because the petition shows on its face that this condition action is barred by the statute of limitations, precedent. because no written verified statement of the time the injury occurred has been presented to the council of the city of Keokuk or filed with the city clerk within 30 days after plaintiff's alleged injury."
The district court overruled the demurrer; hence this appeal.
It is conceded that the defendant corporation is a city under special charter. Section 6734, Code of 1924, reads in part as follows: *1125
"In all cases of personal injury or damage to property resulting from defective streets or sidewalks, * * * no suit shall be brought against any such city after three months from the time of the injury or damage, and not then unless a written verified statement of the amount, nature, and cause of such injury or damage, and the time when and the place where such injury occurred, * * * shall be presented to the council or filed with the clerk within 30 days after said alleged injury or damage was sustained."
The general Statute of Limitations governing actions of this kind, to wit, Subdivision 1 of Section 11007, Code of 1924, has no application to the question under consideration, and the decisions made under that section are of little aid in the consideration of the question in hand. That statute is fully discussed and elaborated upon in the case of Howe v. SiouxCounty,
The verified statement above referred to contains only this statement relative to the time when the accident occurred: "Said fall having occurred in the evening of March 22d." *1126
2. MUNICIPAL Section 6734, above quoted, requires that the CORPORA- verified statement set out "the time when and TIONS: the place where such injury occurred." The actions: aforesaid Subdivision 1 of Section 11007 ineffectual provides that the written notice shall specify notice. "the time, place, and circumstances of the injury." It is apparent, therefore, that the legislature, in both instances, made time one of the necessary elements to be set out in said statement. In the following cases we held that a notice that did not designate the place where the accident occurred was insufficient. Buchmeier v. City of Davenport,
In Neeley v. Town of Mapleton,
In the Howe case, referring to the above, we said:
"The notice referred to has been liberally construed by the courts generally, but, so far as we have been able to find, no court has ever held a notice sufficient which omitted to state one or more of the three essential requirements of the notice."
By reason of these requirements of the statute, a municipality is afforded some protection against stale claims or the connivance of public officials, and is given an opportunity to investigate the source of the claim at a time when the evidence relating to it is fresh and can be easily gathered. We cannot understand why it is not just as important that the time be specific as that the place be specifically pointed out. One is just as important as the other. Authorities are not very numerous on this proposition, but in White v. Town of Stowe,
"The benefit that it was designed towns should derive from the giving of the notice required by the act of 1870 was that *1127 they might be advised of the kind and character of claims that might be made against them and prepare their defense; and in order that the notice may be of value to them for that purpose, the time and place of injury must be made specific. It must be so certain in description of time and place as to impose a duty upon the selectmen to investigate the claim. If the notice does not state that the injury happened on a highway that the town was bound to keep in repair, the selectmen would be justified in disregarding it. So, if the notice does not state that the injury happened within thirty days next preceding its receipt, they might well say that the injured party had no claim against the town."
See, also, 17 Corpus Juris 1130.
The case further holds that parol evidence is not permissible to supply the legal requirements of the written notice, and that the sufficiency of this must be determined without reference to anything which occurred subsequently to its receipt. The case further proceeds:
"Testing the notice by what it contained, it was manifestly defective in omitting to state with the required certainty the time when the injury was received * * *."
In this case, the notice that was served on the city contained no statement of the year in which the accident happened. It may have been the present year, or any year in the past. The statement is defective in this respect, and this being a condition precedent to the bringing of the action, we are of the opinion that it does not comply with the requirements of the statute, and hence was no notice.
We are quite familiar with the rule that, in matters of this kind, a liberal construction is to be given to the statement filed, but we insist that the requirements of the statute be complied with. In Blackmore v. City of Council Bluffs,
"While the statute should be liberally construed, no construction should be indulged in that emasculates it, or deprives the city of the notice which it is the intent of the statute that it should have, to wit, notice of the time, place, and circumstances of the injury. * * * The notice is, therefore, sufficient if it conforms to the statute as to time, place, and circumstances, and is in writing, and is served * * *." *1128
The district court was in error in its holding, and the case is reversed. — Reversed.
De GRAFF, C.J., and STEVENS, FAVILLE, VERMILION, and MORLING, JJ., concur.
