Hаrvey MOUNT, Jr., Plaintiff and Appellant, v. CITY OF VERMILLION, a Municipal Corporation, Defendant and Respondent.
No. 11699.
Supreme Court of South Dakota.
Decided Feb. 17, 1977.
250 N.W.2d 686
Argued March 16, 1976. Reassigned Jan. 6, 1977.
William P. Fuller and Timothy J. Nimick of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and respondent.
This action was instituted to recover $165,000 in damages for pеrsonal injuries incurred in a Vermillion city park. After considering depositions presented to it, the First Judicial Circuit Court granted summary judgment for defendant city, ruling that plaintiff had not complied with the sixty-day notice requirement of
On the evening of April 23, 1974, plaintiff wаs using a swing in the Lyons Park in Vermillion when a part of the chain or seat fastener slipped or broke. Plaintiff fell, landing first on his tailbone and then striking the back of his head. For the next week, plaintiff had soreness in his back and throughout his body. When he develoрed cramps in his stomach, he saw his doctor who prescribed some medication for a “nervous stomach.” The stomach pains continued for an additional week. During that time, plaintiff sought relief through painkillers administered as an outрatient at the local hospital. He continued to work during this time. The pains continued until hospitalization was necessary on May 19, 1974. During his stay, plaintiff‘s spleen, which had ruptured, was removed. He remained in the hospital until May 26, 1974.
Plaintiff was readmitted to the hospital on May 29, 1974. He was subsequently transferred to St. Joseph‘s Hospital in Sioux City, Iowa, where a second operation was performed to remove blood clots from his intestines. Plaintiff was released June 16, 1974, and returned to work July 9, 1974. By a lеtter dated November 4, 1974, plaintiff filed a notice of the April 23rd incident with the city auditor.
Plaintiff attacks the constitutionality of
“Where the person injured is a minor, or is mentally or physically incapacitated, the court in its discretion, may grant leave to serve the notice required by § 9-24-2 within a reasonable time after the expiration of the period of disability, provided that the application for such leave is made within a year from the happening of thе event upon which the claim is based.”
Plaintiff contends that because of his physical incapacity during the sixty-day requirement of
The court held that
We cannot agree with the court‘s interpretation of
We must endeavor to determine whether plaintiff should have been granted leave to serve notice under
Plaintiff additionally contends that the city had actual knowledge which should prevent it from utilizing
Viewing the evidence in the light most favorable to plaintiff, Wilson v. Great Northern Ry. Co., 1968, 83 S.D. 207, 157 N.W.2d 19, it appears he discussed the incident with his fellow workers and informed the city park and recreation director of the fact of the fall. He told the director to repair the swing, which was done; however, he did not tell him of his injury. The director told the city manager of the fall, but he did not file a written accident report, whiсh he would have done if he had known of an injury. Plaintiff, a city employee, also filed a claim with the city‘s hospitalization insurer in which he described the accident, and submitted an application to the city‘s accident insurer. Before preparing the application, he discussed it with the city auditor, and she testified she learned the facts of the incident from others.
Counsel for the city during oral argument on the motion for summary judgment conceded that the city had actual notice of this occurrence. At page 75 of the record, he stated:
“And it seems that the Plaintiff‘s crux on the matter is that because the city did have actual notice, and there is no dispute about that, the record shows that, but becausе of that fact the Statute means nothing.”
Again, at page 78 of the record, counsel stated:
“* * * the thrust of the opposition to the summary judgment is on the basis of actual knowledge and as the file shows, we had actual knowledge within 24 hours, I think, after it occurred. And in fact we went out and made repairs tо the swing. So we knew about it.” (emphasis supplied)
“[w]hile this notice of the injury is not рroof that [plaintiff] was making a claim, it nevertheless indicates that the city was alerted to make whatever investigation it needed to in order to defend itself in a possible suit, which is supposed to be the reason for requiring adherence to the notice requirement in the first place.” 231 N.W.2d at 277.
Reversed and remanded for trial.
WOLLMAN and ZASTROW and PORTER, JJ., concur.
MORGAN, J., concurs in part and dissents in part.
MORGAN, Justice (concurring in part and dissenting in part).
I concur with the majority opinion to the extent that I am convinced from the record that the claimant was entitled to the benefit of the provisions of
As to the balance of the opinion however, with respect to the adequacy of the purported notice, the case of Inlagen v. Town of Gary, 1914, 34 S.D. 198, 147 N.W. 965, and Hagberg v. City of Sioux Falls, 1968, D.C.S.D., 281 F.Supp. 460, cited by the plaintiff and mentioned by the majority in their opinion are not аuthority for the point contended, that is, that actual knowledge would prevent the city from utilizing
Going back to the Inlagen case the court there pointed out that the purpose of the notice, as required by statute, is to apprise the municipality of the fact that an accident from which a claim could arise had occurred (emphasis added) so that the officers of such city or town may have an opportunity to investigate the cause of such accident, if any, while the conditions which resulted from such accident are, as nearly as may be, the same as when the accident occurred.
I would further point out that the insurance claims made as mentioned in the majority opinion were for hospitalization insurance coverage which plaintiff carried under the city and for accident insurance coverage which he likewise carried under the city, but nowhere in the record does it show that any claim was made to the city‘s liability insurance carrier.
This is not to intimate that I would consider such claim to be in compliance with the statutory requirement. The requirements for notice are entirely within the prerogative of the legislature and so long as the legislature‘s scheme meets constitutional requirements it is not up to this court to amend them.