237 F.2d 28 | D.C. Cir. | 1956
Lead Opinion
announced the judgment of the court and filed the following opinion, in which WILBUR K. MILLER and BASTIAN, Circuit Judges, join:
This is a damage suit against the District of Columbia, in which the central question is whether the statutory requirement as to notice of claim has been met.
Plaintiff-appellant tripped and fell, injuring his ankle, while rounding the northeast corner of Sixth and L Streets, S. E. He brought this action in the Municipal Court against the District of Co
The Municipal Court denied the District’s motion for summary judgment, and, after a jury trial, appellant won a judgment. The Municipal Court of Appeals reversed. 1955, 112 A.2d 497, 499. It did so on the strength of McDonald v. District of Columbia, 1955, 95 U.S.App.D.C. 305, 221 F.2d 860, where this court held that inaccuracies in a written notice seasonably sent to the Commissioners were not cured by subsequent but still seasonable corrections conveyed to an assistant in the office of the Corporation Counsel (to whom the Commissioners had referred the original notice) and to the District’s Inspector of Claims. Dismissal for failure to comply with the statute was upheld by this court on the theory that the correction should have been sent to the Commissioners themselves instead of their subordinates, although the District conceded its defense to the claim had not been prejudiced.
In the present case we permitted an appeal, and, after oral argument before a three-judge panel, set the case for rehearing en banc because the court wished to reconsider its ruling in McDonald.
We turn first to the notice by plaintiff’s attorney to the Corporation Counsel. Section 1-301 of the D.C.Code (1951) says that the Corporation Counsel “shall * * * have charge and conduct of all law business of the said District, and all suits instituted by and against the government thereof.” The notice required by Section 12-208 of the D.C.Code (1951) is clearly related to potential suits against the District, and as can be seen from Judge Bastian’s dissent in McDonald v. District of Columbia, supra, 95 U.S.App.D.C. at pages 306-307, 221 F.2d at pages 861-862, notice to the Commissioners is normally transmitted as a matter of course to the Corporation Counsel. In our view, the opinion in McDonald misconceives the purpose of the statutory notice, which is to give the District timely information concerning a claim against it, so it may adequately prepare its defense.
In the instant case, we think the notice was otherwise adequate. Within two months’ after the accident, the District had interviewed the witnesses to the accident and taken pictures of the site. These events show that there was no prejudice to the District from plaintiff’s error. It may, of course, be true that the letter from plaintiff’s counsel to the Corporation Counsel bore no causal relationship to these events. But Section 12-208 of the D.C.Code (1951) contains no such requirement. A notice would, for example, suffice if given within the six months period though the District had completed preparation of its case and repaired the spot before receipt of the notice. In a case such as the instant one, in which the right site was discovered and there is no assertion that plaintiff deliberately sought to mislead the District, notice fully complies with the purpose of the statute when it pin-points the locale with sufficient accuracy so that an investigation starting from the notice could. reasonably be expected to uncover the available information. Such, on the face of the record, was this case. If — despité determination of the right spot and location of the witnesses — the District wished to claim prejudice, it was up to the District to make a record on that point. Had the report filed by plaintiff’s counsel merely referred to 6th and L Streets, S. E., without reference to a specific corner, we think the notice would have been beyond question. The inclusion of additional specificity — though erroneous— should not defeat the notice in the absence of a showing of prejudice.
We turn to the police report, which appellant says constitutes “sufficient notice” under the proviso appended to Section 12-208. We agree, since we find no support in the statute for applying a stricter standard to that report than we have set out above for a notice from plaintiff. It is true that in the instant ease the report by the police was not based on first hand observation but on a report to the police originating with appellant. But the statute contains no requirement of observation or on-the-site investigation. It seems obvious that the reference to a police report is included because Congress did not wish to cut off a plaintiff for lack of notice when the officials of the District had received from the Police Department a report of the episode prepared “in regular course of duty.” The extent of the investigation by the police should not be the measure of the plaintiff’s rights. The.report in this case was adequate for purposes of the proviso.
Judges EDGERTON and FAHY agree that we should reverse the judgment of the Municipal Court of Appeals. Accordingly the judgment is reversed.
Judges EDGERTON and BAZELON agree that so far as McDonald holds that notice must be sent directly to the Commissioners and that an otherwise adequate notice addressed to the Corporation Counsel is not sufficient, McDonald is erroneous. On that point McDonald is overruled.
So ordered.
BAZELON, Circuit Judge, is of the view that the appeal should be dismissed as having been improvidently granted, for the following reasons: We granted Stone’s petition for allowance of an ap
The complaint alleged that “plaintiff notified the Commissioners of the District of Columbia in writing” within six months after the accident. All that appears in the record concerning such notice is the following stipulation in an amended pre-trial order:
“The District of Columbia received a letter from Foster Wood, attorney for plaintiff, addressed to the ‘Corporation Council’ under date of April 30, 1953, setting forth that the plaintiff was injured April 15, at the northwest corner of sixth and L Streets southeast.” [Emphasis supplied.]
The evidence at the trial disclosed that the accident occurred on the northeast, rather than the northwest corner of the intersection. There was no evidence that appellant corrected the discrepancy within the six months’ period, either orally or in writing.
It is true that at the trial, which was held long after the six months’ period expired, a District investigator identified a photograph he had taken at the northeast corner about six weeks after the accident. But the record does not make clear that the District authorities were aware, when the photograph was taken, or at any time within the six months’ period, that the photograph showed the correct corner. Consequently we have no assurance that the District was not prejudiced or hampered in handling and defending against Stone’s claim, so that it might be said that the mistake in the original notice was cured.
Thus, in my view, we do not reach the question whether the statutory requirement for “written notice to the Commissioners of the District of Columbia” is satisfied by a letter sent to the Corporation Counsel. But since a majority of the court has decided to reverse the judgment of the Municipal Court of Appeals and three judges are announcing an opinion that deals with the question just stated, I think I should express my view regarding it. Cf. Mr. Justice Frankfurter’s separate opinion in Armstrong v. Armstrong, 1956, 350 U.S. 568, 572, 76 S.Ct. 629. So far as McDonald holds that notice must be sent directly to the Commissioners, and that an otherwise adequate notice addressed to the Corporation Counsel is not sufficient, I think McDonald is erroneous. I am in agreement, to that extent, with Judge WASHINGTON’S opinion in this case.
As to the police report, it was not referred to in the complaint and there is no evidence concerning it in the record. The existence of such a report and a fragmentary excerpt therefrom were merely referred to by the parties in oral argument before the trial court. The excerpt indicates that the report also included a wrong corner of Sixth and L Streets, as the place of accident.
The proviso directs that a police report “shall be regarded as sufficient notice.” It does not expressly incorporate the requirements of the statute’s forepart for information concerning the “time, place, cause and circumstances” of the accident. At first blush, it would seem to follow that the mere existence of a police report establishes notice, without regard to its scope, accuracy and source of information, or the circumstances surrounding its preparation. But I think this plainly inconsistent with the statute’s purpose of assuring adequate information for the proper and efficient disposition of claims by the District. Congress undoubtedly assumed that such information would be found in a report by trained police personnel. But clearly this assumption cannot be extended to a report which, for an extreme example, merely reflects an inaccurate oral description relayed by the claimant to the police five months after the accident. Hence we cannot determine whether the report is one that falls within the reasonable contemplation of the statute’s proviso, without at least knowledge of the full report. No such report is before us in the present case.
Since the record is inadequate for the purpose for which we granted this petition for allowance of an appeal and thereafter ordered a rehearing in banc, the appeal should have been dismissed as having been improvidently granted.
. Section 12-208 provides: “No action shall be maintained against the District of Columbia for unliquidated damages to person or property unless the claimant within six months after the injury or damage was sustained, he, his agent, or attorney gave notice in writing to the commissioners of the District of Columbia of the approximate time, place, cause, and circumstances of such injury or damage : Provided, however, That a report in writing by the Metropolitan police department, in regular course of duty, shall be regarded as a sufficient notice under the above provision.”
. The letter specified the northwest corner, and the report the southeast corner. Actually, as it later appeared, the accident happened on the northeast corner.
. Appellant’s tender of proof that repairs had been effected within that time was rejected as a result of the District’s objection.
. The fact that a report in writing by the police department constitutes sufficient notice under D.O.Oode § 12-208 demonstrates that other purposes which a notice statute might have, such as providing the equivalent of taking plaintiff’s dep
. “ * * * the purpose of the bill is to give the District officials reasonable notice of the accident so that the facts may be ascertained and, if possible, the claim adjusted.” H.R.Rep. No. 2010, 72d Cong., 2d Sess. 2 (1933). See also 17 McQuillin, Municipal Corporations § 48.02 (3d ed. 1950).
The District does not concede here, as it did in McDonald, that it was not prejudiced or hampered. See also Hurd v. District of Columbia, D.C.Mun.App.1954, 106 A.2d 702, 704.
. Counsel for the District read this excerpt to the trial court in the course of oral argument:
“Veston [sic] Stone, colored, 31 years, of 630 M Street, S.E., reports at about 6:35 a.m., April 15, 1953, while walking on the sidewalk on the S.E. corner of Sixth and L Street, S.E. * * * ”
Dissenting Opinion
(dissenting).
Judge BAZELON has demonstrated that the record is barren of proof of the notice contemplated by the statute. He might have added that due to a geographical anomaly caused by playgrounds and off-set intersections, there are no less than six different locations which answered to the description, “corner of sixth and L Streets southeast” as the situs of the alleged defect. I agree otherwise with his observations except that I dissociate myself from the suggestion that the McDonald case was incorrectly decided. I think the McDonald result is commanded by the statute, and there are real reasons why that is so.
First is the need to protect against false or unjustified claims, for unfortunately, there are some claimants who are strangers to the truth where a dollar is involved. So, Congress requires that the notice shall supply information as to the “approximate time, place, cause and circumstances” of the alleged injury. Next, as Congress says, the prescribed timely notice shall be given to the Commissioners even as to valid claims, for the District is entitled to a reasonable opportunity to prepare a proper defense to all claims, valid or invalid. The courts shall not be open to a non-complying claimant unless the required information, in writing, shall be supplied in behalf of the claimant or by the police “in regular course of duty.” Under the circumstances, the statutory notice is by no means an “idle formality,” as I read the Code and understand its purpose.
If Circuit Judge WASHINGTON’S opinion is correct, it makes no difference whether the notice be given to the Highway Department,
Congress has clearly and expressly spoken otherwise. The matter of an opportunity to prepare a defense is only part of the statutory scheme. Of course Congress knows that the District has a Corporation Counsel who defends lawsuits, but Congress did not authorize the filing of the prescribed notices with the Corporation Counsel. The Commissioners are the government of the District of Columbia. Congressional appropriations for the maintenance of the District are to be expended under the eye of the Commissioners. When notices are filed or police reports are submitted as the law requires, the Commissioners become charged with knowledge of the information so supplied. Since Congress has seen fit to hold the Commissioners responsible, notice to them has been required that they, in turn, may perform their proper function of supervising, or of inquiring into, the work performance of those lesser officials whose duty it is to keep in reasonably safe condition those areas of the District which the latter should maintain.
The McDonald rule may seem harsh when its effect has been to deny relief where some District officials from some source, have had actual knowledge of the location of the defect complained of and have not been misled by an inadequate or incorrectly directed claim. It seems to me that Congress might be asked to relax the rigors of its present statute by providing that where the District has actual and timely notice of the circumstances out of which the claim arose and is sufficiently informed to prepare its proper defense, no more need be demanded.
But, in my view, it does not lie properly within the power of the court to impose less burdensome conditions to be met than Congress has deemed should be met. The Congress has not said that the District may be liable for an injury if it has actual knowledge of the time, place and circumstances, regardless of the form of notice or where the claim is filed, or how the District may have acquired such knowledge. Since Congress has not said that much, the court should not say so. Does any one suggest that it is for us to say that the notice of claim may be filed in 24 months instead of the six months limited by the statute, or that claims for injuries due to snow and ice should realistically be filed within 10 days instead of six months ?
We need not cite statutes in other jurisdictions where statutory notice requirements have been relaxed when actual notice is shown. I mention one, however, where the legislature, when confronted with the problem, amended its notice statute by adding the following:
“No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury, or in stating the time, place or cause of its occurrence if it shall appear that there was no intention to mislead or that such [municipal corporation] * * * was not in fact misled thereby.”1
It is not to be doubted that Congress will in the light of hardship cases consider the problem if brought to its notice. It might also think it wise to amend further to permit a special period, say of one year, within which in instances where it can be shown the District had actual knowledge, any action which accidentally failed to survive the McDonald case, might be revived and reopened, or might be brought if not previously commenced because of the McDonald ruling.
I have respectfully submitted the foregoing since such amendments will more nearly achieve complete justice than is possible under the statute as presently written. Rather than the court, I think Congress should pronounce the rule under which a remedy may be sought where the District’s liability is limited by a section of our Code.
In considering the problem, it should be realized that there are more than 3,000 miles of streets in the District of Columbia.
. See Conn.Gen.Stat. § 2126, Rev.1949.
Dissenting Opinion
(dissent- • ing).
I agree with the opinion ;of my brother Danaher, but I am constrained to add some additional observations from my own point of view. I think McDonald was correctly decided by this court and. Stone was correctly decided by the Municipal Court of Appeals. Judge DANA-HER joins me in this opinion.
Congress enacted a statute which reads:
“No action shall be maintained against the District of Columbia for unliquidated damages to person or property unless the claimant within six months after the injury or damage was sustained, he, his agent, or attorney gave notice in writing to the commissioners of the District of Columbia of the approximate time, place, cause, and .circumstances of such injury or damage: * *1
The statute enacted by the Congress is a clear statute. It makes a simple requirement, involving no expense or technicality. The notice need not be entered upon any specified form. It need not be in any particular language.' The statute does not require either the difficulty or the’ expense of a verification. ■ It does not require the informant to make any investigation; he is required to state only that which he himself knows better than anyone else. No particular form of service is required; the notice must. merely be given. A pencil, a scrap of paper, and an envelope and three-cent stamp are the only materials necessary. The claimant is permitted adequate time within which to give his notice — six months. He need not give the notice himself; his-agent or attorney may do so. Examination of the many laws in the states upon this subject impresses upon the examiner that this was a well-drawn.piece of legislation.
.The requirement that the notice be given to the Commissioners of the District of Columbia is a reasonable one. The Government of the District of Columbia, like the government of any large municipality, is a complicated affair. It-includes many departments, divisions and subdivisions. Its offices are scattered all over the District.’ Many claims for damages to person or property are made against it. At oral argument its counsel told us that after a heavy snowstorm claims will run over a hundred a day. These claims may relate to any one of a number of departments — not only to streets and highways but to garbage collection, hospitals, police, public buildings,, schools, trees and parking, sewers, and other municipal activities. To be sure, the defense of governmental function ultimately defeats many of these claims, and many others are found without color of merit. But the claims are made nevertheless and have to be investigated. Surely Congress has the right to select and designate the officials whom it wishes to hold responsible for this municipal function. Moreover," when these claims are channeled initially into one central reception place, they can be distributed to the proper department or division according to the content of the claim. The Commissioners, the central and top authority, ought to be able to direct where and by whom a claim of damage is to be investigated. Congress made a perfectly proper requirement in that respect.
The requirement that the claimant give notice of the time, place and circumstances of the injury for which he claims damages is also a reasonable one from many points of view. After all, payment of these claims is from the public treasury, taxpayers’ money, and city officials should be enabled to defend if defense is proper. Moreover, as Judge Pound of the Court of Appeals of New York said:
“The city is entitled to know, not alone where the accident in fact happened, but also where the injured person claims that it happened. The two points are not necessarily and*35 invariably identical, and the rule requiring a particular location to be stated in the notice should not be greatly relaxed merely because the conjectures of the city officials as to its meaning prove accurate.”
And, again, of course a reasonably accurate notice of time, place and circumstances greatly reduces the burden of a large city in investigating these many claims arising out of alleged defects in sidewalks.
In its present opinion this court
The court refers to the provision of the District Code which gives the Corporation Counsel charge of “all law business” of the District.
The second fundamental change made in the statute by the court is in substituting a general doctrine of equity, non-prejudice, and acquired knowledge for plain and specific requirements. It holds the notice in Stone to be adequate, because within two months after the accident the District had interviewed the witnesses to the accident, taken pictures, and discovered the right site — although, the court notes, it may be true the letter from plaintiff’s counsel to the Corporation Counsel bore no causal relationship to these events,' — and because plaintiff did not deliberately seek to mislead the District and the notice pin-pointed the locale with sufficient accuracy so that an investigation starting from the notice could reasonably be expected to uncover the available information. The court relies heavily upon the fact that the District did not affirmatively claim prejudice. We are not sure that the court requires any written notice. Certainly, instead of treating the notice provision as mandatory, as the other courts of the country do,
To our minds the opinion of the court is a complete rewriting of the plain and simple requirements of the statute. We anticipate that every defective notice or
The problem is neither new nor novel. It appears from the reported cases that some thirty or more states have similar statutes, and courts of last resort have often dealt with the adequacy-of the required notices. The cases are myriad. Through them run two clear rules. (1) The specific requirements of the statute must be met. (2) When the statute requires a description of the accident, i. e., time, place, nature, etc., at least substantial compliance is required.
One of the specific requirements in these state statutes is that a notice in writing must be given, and the courts hold that such a notice must be given in writing. All the courts, so far as we can ascertain, hold such a notice, when so required, to be mandatory and a condition precedent to suit. McQuillin
Another of the specific requirements is that the notice must be given to or served upon the officer or officers named in the statute. Many cases are on the point.
“The notice must be given to or served upon the officer named by the law, not to or upon another officer. The policy of the law, it has been said, is to impose an unqualified duty upon the officer specified and not to clothe the injured person with discretionary power to select some other municipal officer to whom to give or serve with notice.”
In New York the Court of Appeals held that where the statute required notice to counsel for the corporation notice to the Comptroller was not sufficient even though the latter officer sent the notice to the Corporation Counsel.
In North Carolina a notice addressed to the Mayor and City Council, as required by statute, was held effective when handed to the City Manager and by him hand
In Illinois the statute required notice to the city attorney and the city clerk. A claim was filed with the city council by an alderman on behalf of the claimant and was thereupon endorsed by the city clerk and the corporation counsel. The notice was held invalid.
In Wisconsin service on the mayor and city clerk was held “necessarily fatal” where the statute required service on the street commissioner, sidewalk superintendent, or alderman of the ward where the accident happened.
Mr. Justice Cardozo, while Chief Judge of the Court of Appeals of New York, wrote :
“The Legislature has said that a particular form of notice, conveyed with particular details to particular public officers, shall be a prerequisite to the right to sue. The courts are without power to substitute something else.”
Sometimes a problem arises where the statute requires notice to a named official, such as the mayor, and service is acknowledged in his name by a lesser official, such as his secretary or clerk. In at least two cases in Missouri such service was held sufficient,
Problems also arise where the claimant is lulled into security by some act of the municipal authorities, such as where the claimant was wrongly advised by an official or where some defect in a notice is expressly waived by the municipality. The courts are in conflict as to whether defects can be expressly waived.
The philosophy of the courts is that the legislature has power to name the municipal officials upon whom responsibility for protecting the public treasury against claims shall be placed, and to name the requisites for suit against a municipality. We have not found a case which holds valid a notice served upon or given to an official other than one named in the statute and not shown to have been duly transmitted to the official so named. The case at bar would seem to be the first such case.
We come, then, to the established rules as to the description of the time, place and circumstances of an accident when such a description is required in a notice. Some states are quite rigorous in that regard, holding that the statute must' be read literally and strictly. But other courts hold that substantial compliance is sufficient in respect to the contents of an otherwise valid notice. The Supreme Court of Tennessee, in 1941, was of the view that a rule of strict construction is supported by the weight of authority in the United States.
McQuillin
The cases hold that the fact that city officials may acquire full knowledge of the facts about the accident does not dispense with the notice required by statute. In other words a notice sufficient in itself must be given to the proper officials, regardless of what information the city may have received from other sources. Thus the fact that the mayor was one of the first people on the scene of an accident was held ineffective in North Carolina;
The Court of Appeals of Kentucky held that a letter from the city law department, describing the accident in full, could not supply the defect of a notice served by the claimant which failed to give the character and circumstances of the injury.
In Illinois, within the statutory period, investigators obtained a full statement from a claimant, which was served upon and available to the Secretary and General Attorney of the Transit Authority. The statute required written notice sign-' ed by the claimant. The lack of such a notice was held fatal. The court observed that it was common knowledge that the' city investigates accidents but that a claimant was not thereby relieved from giving notice.
Among the states listed by McQuillin as adhering to the substantial compliance doctrine are Alabama, Connecticut, Illinois, Indiana, Iowa, Michigan, New York,. Rhode Island, Tennessee and Wisconsin. A look at a few cases in those states will demonstrate how the doctrine is applied.
In Alabama a notice said the accident occurred on Forty-Ninth street, between Tenth and Eleventh avenues. In fact it occurred on Forty-Ninth street between Ninth and Tenth avenues. The notice was held fatally defective.
In Indiana a notice said the accident happened in front of 426 South Meridian Street. It actually occurred in front of 458 South Meridian. The notice was held defective.
In New York a notice gave the date of an accident as August 20, 1912. In fact it occurred on August 28th. The notice was held not to be in substantial compliance.
In Rhode Island a notice said the cause of injury was slipping on ice, snow and water. In fact the claimant stepped in a hole in the sidewalk. The notice was held defective.
The sum total of the rule, as I have found it, is well stated by the Appellate Court of Indiana in City of East Chicago v. Gilbert.
“ * * * in so far as concerns the requirement that the notice be given, and within the time specified, and to the proper officers, the statute is strictly construed. [Citing cases.] But on the question of whether or not a notice in fact given is sufficiently definite as to the time, place, nature, etc., of the injury, the rule of liberal construction is generally adopted by the courts.”
We come now to the cases before us. In McDonald the notice given the Commissioners pursuant to the statute gave the place of the accident as 14th and V Streets, Northwest. The District of Columbia is divided into four sectors. There are three 14th and V intersections in the city. The one in the northwest sector is some five miles or more from the one in the southeast sector where the accident really happened. The cause of the accident was an alleged defect in a sidewalk. Officials of the city could have searched until they dropped, and they would not have found the defect in the neighborhood of the place given in the notice. In our judgment such a notice would not fall within the permissible bounds of any state court decision upholding even the substantial compliance doctrine. An error of miles in locating a defect in a sidewalk is not substantial compliance with a statute requiring notice of the place of an accident.
The correct location of the accident in McDonald was given verbally to an assistant corporation counsel. It was not in writing, was not given to the Commissioners, and, so far as the record shows, never reached them or any of them. In our view it was totally defective.
In the Stone case — omitting from the? discussion the police notation — no notice in writing was given the Commissioners. It was given to the Corporation Counsel. That fact alone made it fatally defective. It was not shown that the notice ever reached the Commissioners or any of them. As a matter of fact appellant Stone stated flatly in his brief in this court: “Appellant does not make any claim that his attorney’s letter constituted notice to the Board of Commissioners.” Despite that disclaimer this court now holds that letter to have been a validly effective notice to the Commissioners.
In Stone the only thing in the record about the notice is in a pre-trial stipulation.
“The District of Columbia received a letter from Foster Wood, attorney for plaintiff, addressed to the ‘Corporation Council’ under date of April 30, 1953, setting forth that the plaintiff was injured April 15, at the northwest corner of sixth and L Streets, southeast.”
The foregoing is all the record contains as to the notice. That is the notice we are considering. The court holds such a notice to be a valid compliance with the statute.
Our statute requires that the notice state “the approximate time, place, cause, and circumstances of such injury or damage”. This notice, as we have it before us, did not state any circumstances— whether claimant was walking or driving, whether he was hit by a truck, fell into a hole, slipped on a wet spot, fell over a barrier, or tripped on a sidewalk defect, whether the sidewalk or the parking or the street was torn up, or any other circumstance whatever. The notice does not describe any injury or damage. It does not say whether claimant bumped his
In our opinion' this notice, as we have it on this record, was defective in every important respect in the substance of what the statute required. The court holds such a notice to be valid in this jurisdiction. No other court decision that we have been able to find would support such a holding on such a notice.
In our opinion the statute enacted by the Congress is clear, simple, specific, and based upon sound reasoning and ample authority.' It -prescribes a mandatory prerequisite to suits against the District of Columbia for injuries or damage-. The notices given in the McDonald and Stone cases were patently insufficient. The decision of this court’ holding them to be valid is erroneous, in our judgment. The-court cites no authority in support of its view. We think there is noiie. There are dozens of .cases to the contrary. ,
. 47 Stat. 1370 (1933), D.C.Code § 12-208 (1951).
. Casey v. City of New York, 217 N.Y. 192, 111 N.E. 764 (1916).
Judge Washington announces an opinion concurred in by two other judges, and Judge BAZELON, in a separate opinion with Chief Judge EDGEItTON concurring, agrees in so far as McDonald is concerned. We shall refer to the action indicated by the opinion of Judge WASHINGTON as the action of the court.
. D.C.Code § 1-301 (1951).
. 42 Stat. 1488.
. Act of Eeb. 28, 1933, supra note 1.
. The only exceptions I have found are a few cases of infancy or prolonged incapacity beyond the period allowed for the notice.
. 18 McQuillin, Municipal Corporations § 53.154 (3d ed. 1950).
. See also, e.g., Bituminous Cas. Corp. v. City of Evansville, Indiana, 191 F.2d 572, (7 Cir., 1951) ; City of Louisville v. Verst, 308 Ky. 46, 213 S.W.2d 517, 519 (1948) ; Rich v. City of Eastport, 110 Me. 537, 87 A. 374 (1913).
. See, e.g., White, Negligence of Municipal Corporations § 694 (1920).
. 18 McQuillin, op. cit. supra note 7, § 53.160, citing cases from California, Colorado, Florida, Illinois, Massachusetts, Minnesota, New York, North Carolina, Tennessee and Texas.
. Lewis v. City of New York, 278 N.Y. 515, 15 N.E.2d 672 (1938).
. Rogers v. Village of Port Chester, 234 N.Y. 182, 137 N.E. 19 (1922).
. O’Connell v. City of Cambridge, 258 Mass. 203, 154 N.E. 760 (1927); Merrill v. City of Springfield, 284 Mass. 260, 187 N.E. 551 (1933); King v. City of Boston, 300 Mass. 377, 15 N.E.2d 191 (1938); Brown of Town of Winthrop, 275 Mass. 43, 175 N.E. 50 (1931).
. Perry v. City of High Point, 218 N.C. 714, 12 S.E.2d 275 (1940).
. Nevins v. City of Lexington, 212 N.C. 616, 194 S.E. 293 (1937).
. McCarthy v. City of Chicago, 312 Ill.App. 268, 38 N.E.2d 519 (1941).
. City of Beaumont v. Baker, 95 S.W.2d 1365 (Tex.Civ.App.1936).
. Fisher v. City and County of Denver, 123 Colo. 158, 225 P.2d 828, 23 A.L.R.2d 963 (1950).
. Gilkey v. City of Memphis, 159 Tenn. 220, 17 S.W.2d 4 (1929).
. Huntington v. City of Calais, 105 Me. 144, 73 A. 829 (1909).
. Aronson v. City of St. Paul, 193 Minn. 34, 257 N.W. 662 (1934).
. Harris v. City of Fond Du Lac, 104 Wis. 44, 80 N.W. 66 (Fla.1899).
. Town of Miami Springs v. Lasseter, 60 So.2d 774 (Fla.1952).
. Barton v. City of Waterloo, 218 Iowa 495, 255 N.W. 700 (1934).
. Thomann v. City of Rochester, 256 N.Y. 165, 172, 176 N.E. 129, 131 (1931).
. Peterson v. Kansas City, 324 Mo. 434, 23 S.W.2d 1045 (1929); Callahan v. Kansas City, 226 Mo.App. 408, 41 S.W.2d 894 (1931).
. Jones v. City of Fort Worth, 267 S.W. 681 (Tex.Com.App.1924) 270 S.W. 1002 (Tex.Com.App.1925). See also McLendon v. City of Houston, 153 Tex. 318, 267 S.W.2d 805 (1954).
. White says flatly: “The mayor or other officers of a city have no power, unless expressly granted, to waive the statutory requirements as to the giving of such notice.” White, op. cit. supra note 9, § 673. .
. Powers v. City of Boulder, 54 Colo. 558, 131 P. 395, 46 L.R.A.,N.S.,167 (1913), appears so to hold, but in a later case, Fisher v. City and County of Denver, 123 Colo. 158, 225 P.2d 828, 23 A.L.R.2d 963 (1950), the same court (Supreme Court of Colorado) held that in Powers the notice was actually given to the city clerk, as required by the statute, by the mayor to whom it was first given.
. Gidcome v. City of Nashville, 177 Tenn. 295, 145 S.W.2d 1029 (1941).
. 18 McQuillin § 53.163.
. Lutsch v. City of Chicago, 318 IlI.App. 156, 47 N.E.2d 545 (1943).
. Inlagen v. Town of Gary, 34 S.D. 198, 147 N.W. 965 (1914).
. Bowman v. City of Davenport, 243 Iowa 1135, 53 N.W.2d 249 (1952).
. Stewart v. City of Rio Vista, 72 Cal.App.2d 279, 164 P.2d 274 (1945).
. Pender v. City of Salisbury, 160 N.C. 363, 76 S.E. 228 (1912).
. Touhey v. City of Decatur, 175 Ind. 98, 93 N.E. 540, 32 L.R.A.,N.S., 350 (1911).
. Cole v. City of St. Joseph, 50 S.W.2d 623, 82 A.L.R. 742 (Sup.Ct.Mo.1932).
. Rich v. City of Eastport, 110 Me. 537, 87 A. 374 (1913).
. Treitz v. City of Louisville, 292 Ky. 654, 167 S.W.2d 860 (1943).
. Berry v. City of Louisville, 249 S.W.2d 818 (Ky.1952).
. Hayes v. Chicago Transit Authority, 340 Ill.App. 375, 92 N.E.2d 174 (1950). To the same effect are Schwartz v. City of New York, 250 N.Y. 332, 165 N.E. 517 (1929); Benson v. City of Madison, 101 Wis. 312, 77 N.W. 161 (1898); McComb v. City of Chicago, 263 Ill. 510, 105 N.E. 294 (1914) ; Keller v. Tomaska, 299 Ill. App. 34, 19 N.E.2d 442 (1939); Johnson v. City of Chisholm, 222 Minn. 179, 24 N.W.2d 232 (1946).
. Brannon v. City of Birmingham, 177 Ala. 419, 59 So. 63 (1912).
. Marino v. Town of East Haven. 120
. Schaap v. City of Meriden, 139 Conn. 254, 93 A.2d 152 (1952).
. Atkinson v. City of Indianapolis, 101 Ind.App. 620, 199 N.E. 157 (1936).
. Keller v. Tomaska, 299 Ill.App. 34, 19 N.E.2d 442 (1939).
. Luke v. City of Keokuk, 202 Iowa 1123, 211 N.W. 583 (1926).
. Rottschafer v. City of East Grand Rapids, 342 Mich. 43, 69 N.W.2d 193 (1955).
. Weisman v. City of New York, 219 N.Y. 178, 114 N.E. 70 (1916).
. Casey v. City of New York, 217 N.Y. 192, 111 N.E. 764 (1916).
. Lane v. Cray, 50 R.I. 486, 149 A. 593, 68 A.L.R. 1530 (1930).
. City of Knoxville v. Felding, 153 Tenn. 586, 285 S.W. 47 (1926).
. Benson v. City of Madison, 101 Wis. 312, 77 N.W. 161 (1898).
. A number of cases illustrate the method of testing the sufficiency of a notice as to place under the rule of substantial compliance. The court looks first to the information contained in the notice. It then sets this information against the actual conditions existing at the place of the injury. If it is determined that an official of the city, guided by the notice alone, could go to the place specified and reasonably discover the correct site in light of the actual conditions found there, the notice will bo deemed sufficient. See City of East Chicago v. Gilbert, 59 Ind.App. 613, 108 N.E. 29, 109 N.E. 404 (1915); City of Gary v. Wilson, 103 Ind.App. 376, 8 N.E.2d 109 (1937) ; Nagle v. City of Billings, 80 Mont. 278, 260 P. 717 (1927); Denecke v. Property Collaterals, 279 N.Y. 105, 17 N.E.2d 787 (1938).
. 59 Ind.App. 613, 621, 108 N.E. 29, 32 (1915), quoted in Volk v. Michigan City,
. City of Louisville v. Verst, 308 Ky. 46, 213 S.W.2d 517, 519 (1948); Bowles v. City of Richmond, 147 Va. 720, 133 S.E. 593 (1926).
. Technically the stipulated description of the notice is contained in an agreed motion to amend the pretrial order.
. District of Columbia v. Stone, 112 A.2d 497 (Mun.Ct.App.D.C.1955). .