Summary
In Andrews v. City of Butte, 116 Mont. 69, 147 P.2d 1020, decided in 1944, this court said: "Plaintiff brought this suit against the city of Butte, alleging in his amended complaint that he fell on a broken sidewalk within the city and suffered injuries by reason of the fall.
Summary of this case from Ledbetter v. City of Great FallsOpinion
No. 8393.
Submitted January 14, 1944.
Decided April 21, 1944.
Cities and Towns — Defective Sidewalks — Personal Injuries — Notice of Defect to City — To Whom to be Given — Trial — Evidence — Offer of Proof — Erroneous Refusal. Cities and Towns — Defective Sidewalks — Personal Injuries — Notice of Defect — To Whom to be Given. 1. The provisions of section 5080, Revised Codes, as amended by Chapter 122, Laws of 1937, that before any city or town shall be liable in damages to person or property suffered by reason of a defect in a sidewalk it must be shown that such city or town had actual notice of the defect so as to give it reasonable opportunity to repair it before injury sustained, and that the "city clerk must make a permanent record of all such reported defects" etc., held not open to the construction that the only way the actual notice could be given was through the city clerk. Same — Evidence — Offer of Proof — Error in Refusing Offer. 2. In an action against a city for damages for injuries sustained by a fall on a defective sidewalk, the complaint alleging that defendant city had actual knowledge of the defect, an offer of proof that plaintiff had talked with the city engineer and that the latter had actual notice of the defect in the walk some weeks before the accident, and that the engineer also had on file a written report made by the W.P.A. showing the faulty condition thereof, held improperly refused on the ground that the notice under the above statute should have been given to the city clerk and to no other person or officer connected with the city.
Notice to municipality as essential to its liability for a defect in a sidewalk, see note in 70 A.L.R. 1358. See, also, 25 Am. Jur. 728.
Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge.
Messrs. H.L. Maury, A.G. Shone, and M. Baxter Larson, for Appellent, submitted a brief; Mr. Shone argued the cause orally.
Messrs. P.E. Geagan and E.J. Foley, for Respondent, submitted a brief; Mr. Geagan argued the cause orally.
A city is a creature of statute, and in the absence of constitutional limitations, the legislature may prescribe for it such powers and privileges as it deems best. McClintock v. City of Great Falls, 53 Mont. 221, 163 P. 99. However, the legislature is powerless to destroy directly by statute the rights which are guaranteed to the people by the Constitution of our State. Article III, section 6, of the Constitution provides: "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property, or character; and that right and justice shall be administered without sale, denial, or delay."
If this court were to sustain Judge Lynch's theory that notice must be given to the city clerk, then we are compelled to advance the argument that Chapter 122 of the Laws of 1937 imposes an unreasonable regulation upon the plaintiff in this case, to such an extent as to amount to a denial of justice to him, as well as to other pedestrians who might not know of the defect or obstruction in a street or sidewalk over or by which he gets injured. That pedestrian would allege in his pleadings and say in court that he did not know of the defect and he did not see the defect before he was injured; yet, before he can recover for the city's wrongful act (if it was wrongful), that injured person is compelled before he sustains his injury, to give the city clerk a report of the defect by which or from which he is going to be injured in the future. To require notice from those who know nothing of a defective condition is to impose an unreasonable condition precedent to recovery, and which is beyond the legislative power in the face of our constitutional provisions above quoted. Hanks v. Port Arthur (Tex.), 48 S.W.2d 944, 83 A.L.R. 278, 284; Born v. City of Spokane (Wash.), 68 P. 386, 389. In the latter case, the Washington court held a notice section of the charter of a city unreasonable and void. The provision there read: "That the city shall not be liable for any damages for injuries sustained . . . in consequence of any street . . . or sidewalk being out of repair, unsafe, dangerous or obstructive . . . unless actual notice of such defect or want of repair shall have been given to the superintendent of streets or the city council twenty-four hours before such injury is sustained." (See, also, City of Tulsa v. Wells (Okla.), 191 P. 186.)
Plaintiff brought this suit against the city of Butte, alleging in his amended complaint that he fell on a broken sidewalk within the city and suffered injuries by reason of the fall. In his amended complaint he sets out that the city of Butte had actual knowledge of the dangerous condition of the defective sidewalk. He gave after his injury the written notice required by section 5080, Revised Codes, 1935, as amended by Laws 1937, Chapter 122. Upon the trial he offered proof that he had talked with Frank Curran, the city engineer, concerning the condition of the sidewalk in question, and that Curran had actual notice of the defect some weeks before the accident. Further he offered proof that there was in the files of the engineer a written report prepared by the W.P.A. showing that faulty condition. Objections to these offers of proof were sustained by the trial court. After the plaintiff's case was in, defendant rested without offering any testimony and then moved the court to direct the verdict in its favor, and the motion was granted. Judgment upon the directed verdict was entered and this appeal followed. By the court's action on the objection to the evidence and by its statement it appears that the directed verdict was granted because "in the opinion of the court the actual notice to which the City is entitled under the provisions of Section 5080 Revised Codes of Montana, 1935, as amended by Chapter 122 of the Laws of 1937, must be given to the City Clerk of the particular City involved, and to no other person or officer connected with the City."
The only question, then, before this court for determination [1, 2] is the proper interpretation of section 5080, Revised Codes of 1935, as amended by Chapter 122 of the Session Laws of 1937. That amendment provides that before any city or town shall be liable for damages to person or to property suffered by reason of any defective sidewalks, "it must first be shown that said city or town had actual notice of such defect or obstruction and reasonable opportunity to repair such defect or remove such obstruction before such injury or damage was received; the city clerk must make a permanent record of all such reported defects and shall report to the city street commissioner immediately upon notice of such defect or obstruction; * * *."
The language "the city clerk must make a permanent record of all such reported defects" apparently dictated the lower court's opinion that the only way the actual notice could be given to the city was through the city clerk. With this view we cannot agree. The construction placed upon this language of the amendment is not justified. At most the provision requiring the city clerk to make a permanent record of the reported defect is an inference that ordinarily the notice be given to the city clerk in the usual course of business. The requirement that he make a record is alone not a conclusive indication of the legislative intention that notice be given the city only through him. The primary purpose of the statute is to assure that actual notice is to be given the city. How that actual notice is to be given was not specified. The question in every case such as this revolves around that question of the actual notice to the city through its officials and that actual notice may be proven by any method through competent evidence. Here the offered proof of notice, both oral and written, to the city engineer would be proof tending to show the notice as required by the statute and it was error on the part of the trial court to exclude it, as it was error on the part of the trial court to enter its judgment upon the theory that the statute required something more than actual knowledge on the part of the city.
It was error to exclude the offered proof, and the judgment is reversed with direction to grant a new trial.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ANDERSON, MORRIS and ADAIR concur.
Rehearing denied May 5, 1944.