Miller v. Village of Birmingham
108 N.W. 1015
Mich.
1906
Check Treatment
McAlvay, J.

Plaintiff recovered in a suit for personal injuries received from a fall caused by a defective sidewalk. The injury occurred while she was walking upon a sidewalk along a street of defendant village, which sidewalk she claims defendant negligently allowed to remain out of repair. A loose plank tripped her and caused her to fall, which, she claims, severely and permanently injured her left arm. Within the 60 days provided by law she filed a notice of her claim with the proper officer. It was referred to -thе committee on claims which afterwards re*471ported to the council without any rеcommendation, and at a later regular meeting the claim was rejected. Shе recovered a judgment for $1,000. Defendant asks this court to set aside said judgment on account of errors committed upon the trial, which was had before a jury.

It is insisted that the nоtice of the claim against defendant on account of this injury was defective in thаt it did not ‍​​​​​​‌‌‌​‌‌​​​‌‌​​​​​‌​​​​​‌‌​​‌‌​​​​​​​​​‌‌‌​‌‍conform to the provisions of the statute. As to what such notice shall contain, section 2775, 1 Comp. Laws, provides:

“ Which notice shall set forth substantially * * * the extent of such injury as far as the same has become known. * * *”

The notice as to the injury, which was given defendant, states as follows:

“Was tripped and thrown violently on said sidewalk by reason оf said sidewalk being then and there out of repair and not in a condition reasonаbly safe for travel ‍​​​​​​‌‌‌​‌‌​​​‌‌​​​​​‌​​​​​‌‌​​‌‌​​​​​​​​​‌‌‌​‌‍whereby the undersigned sustained personal injuries, and for which she intends to hold said village of Birmingham responsible in the amount of $5,000.”

We do not think that this notice substantially sets forth the extent of such injury as far as it had become known. Nor does the affidavit required by law, which accompanied the notice, if it can be considered as part of it, in stating “ that she has suffered continually since the injury referred to in the within claim and verily believes she will henceforth continue to suffer great pain and inconvenienсe as the direct result of said injury,” make the notice sufficient. The notice should be sufficiently-specific to give the municipality information as to what the injury comr plained of was.

By assignments of error, based upon the refusal of requests to charge, defendant raises the question as to whether the court ought not to have held this notice defective; that no proper claim had been presented to the village council within the statutory period, and instructed a verdict for the defendant.

*472The acсident occurred December 10, 1900. The notice of the claim was filed February 8, 1901, being thе sixtieth day after the accident. It was referred to the committee on claims February 11, 1901. After a meeting with the committee and discussing matters of settlement with plaintiff, a report was made and the claim finally rejected ‍​​​​​​‌‌‌​‌‌​​​‌‌​​​​​‌​​​​​‌‌​​‌‌​​​​​​​​​‌‌‌​‌‍April 8, 1901. It is claimed that this action of thе council amounted to a waiver of the defects in the notice. The question, thеn, is whether the limitation within which a claim as required by the statute must be presented, having expired, any action of the council afterwards taken could operate as a waiver or estoppel.

In Holtham v. City of Detroit, 136 Mich. 17, this court said:

“An action of tort, once barred by the statute of limitations, cannot, like an action arising out of contract, be revived by either an express or implied agreement,” — citing Renackowsky v. Board of Water Com’rs of Detroit, 122 Mich. 613; Van Auken v. City of Adrian, 135 Mich. 534.

In Holtham v. City of Detroit, supra, it was recognized that defendant might be estopped from setting up the statute of limitations by conduct before the claim is barred. Plaintiff relies upon some of the cases cited by the court in support of this last proposition. All of these cases but one can be distinguished from the case at bar.

In Griswold v. City of Ludington, 116 Mich. 401, the claim was filed on the fifty-ninth day, and it does not appear that any action was taken by the council before the expiration of the 60 days. ‍​​​​​​‌‌‌​‌‌​​​‌‌​​​​​‌​​​​​‌‌​​‌‌​​​​​​​​​‌‌‌​‌‍The bearing оf this fact upon the case was not discussed. The case is therefore not binding authоrity upon the question under discussion. Atwood v. Mayor, etc., of Sault Ste. Marie, 141 Mich. 295; Moinet v. Burnham, Stoepel & Co., 143 Mich. 489.

This case must be ruled by Holtham v. City of Detroit, supra. The right of action having expired before dеfendant took any steps in the matter, whatever may have-been *473done later could not revive it. A verdict should have been directed for defendant as requested. It will nоt be necessary to consider other errors assigned.

The judgment of the circuit court is ‍​​​​​​‌‌‌​‌‌​​​‌‌​​​​​‌​​​​​‌‌​​‌‌​​​​​​​​​‌‌‌​‌‍reversed, and a new trial granted.

Carpenter, C. J., and Blair, Ostrander, and Moore, JJ., concurred.