Opinion
No. 76
Filed 26 January 1973
Municipal Corporations 42 — tort claims against city — notice — knowledge by city employee In an action to recover for damages allegedly sustained when a sewer line owned and operated by defendant municipality became clogged and sewage backed up and overflowed into plaintiff's residence, plaintiff's notice given to the city claims investigator and to the city attorney fell short of the statutory requirement that written notice of tort claims be given to the board of aldermen or to the mayor within ninety days and plaintiff's written notice to the mayor was given more than nine months after the occurrence; therefore, plaintiff's action was properly dismissed.
ON certiorari to the North Carolina Court of Appeals to review its decision filed August 2, 1972, ( 15 N.C. App. 400, 190 S.E.2d 342) affirming a judgment entered in the District Court of FORSYTH County dismissing the plaintiffs' action.
Pettyjohn and Frenck by H. Glenn Pettyjohn for plaintiff appellants.
Womble, Carlyle, Sandridge Rice by Allan R. Gitter and Roddey M. Ligon, Jr. for defendant appellee.
Justice LAKE dissenting.
Justice HUSKINS joins in the dissenting opinion.
The plaintiffs alleged that on January 4, 1970, their dwelling and furnishings were severely damaged by the reverse flow of sewage from the city's main line through the plaintiffs' connecting line into their house. They further alleged that the reverse flow and the damages resulted from the negligence of the city's street maintenance crew in that they permitted sand and gravel from their resurfacing operations to accumulate in the manhole at the juncture blocking the outflow at the point of connection and forcing raw sewage through the plaintiffs' connecting line into the house.
The complaint further alleged, and the evidence disclosed, that on December 8, 1969, the city's maintenance crew removed a partial obstruction from the plaintiffs' sewer line and, therefore, had notice of some defect. The plaintiffs sought to allege two bases for their cause of action: (1) That the city impliedly contracted to furnish reasonably safe sewer service suitable to the plaintiffs' needs and not to injure plaintiffs' property and that in furnishing the service the city was acting in a proprietary capacity and not in the performance of a governmental function; (2) that the city had negligently caused and permitted the city's main line and the plaintiffs' outflow line to become clogged and as a result of the pressure, the contents of the main line were forced through the joinder line causing severe damage to the dwelling and the furnishings.
The defendant filed answer admitting certain paragraphs with respect to the street work, but denied negligence. As further defenses the defendant alleged that the plaintiffs had not shown any breach of contract, that the cause of action they sought to allege was based on negligence, and that the plaintiffs had failed to file with the board of aldermen or the mayor a written claim for loss within ninety days after the claim arose as required by Section 115 of the city charter.
The plaintiffs introduced evidence which in material substance disclosed the following: The plaintiffs in October, 1967, purchased their newly constructed house on Milton Drive within the limits of Winston-Salem. Their plumbing fixtures were attached to the city sewer line. On December 8, 1969, the water backed up in the commode, drained slowly, but did not overflow. The plaintiffs notified the city inspector who opened the line without difficulty by the use of a pressure pump. Nothing indicated any defect or anything out of the ordinary in the occurrence and no further trouble developed until the following January.
On the morning of January 4, 1970, however, all members of the Johnson family were at church, but when Mr. Johnson returned home at 12:30 p.m. he found a reverse flow of sewage pouring into his home which covered the floor to a depth of several inches, spilled out into the other rooms, saturated carpets, rugs, clothing, and other furnishings as well as the building.
When the city officials charged with the duty of maintaining the sewer line responded immediately to the plaintiffs' call, two crews worked for about three hours before the reverse flow was stopped. The stoppage seemed to have been caused by the presence of sand and gravel at the connection. This sand and gravel had been forced into the connection apparently by a road scraper or grader.
After the obstruction was removed and normal operation restored, the maintenance crew assisted the plaintiffs in the clean-up operation, removed from the home many of the damaged articles and after cleaning and repairing them, returned them to the plaintiffs. At the request of the clean-up crew, the plaintiffs made a list of the damaged articles, giving their original cost and their estimated value after they had been returned. The list was delivered to Mr. Cummings, the city's claim agent. This delivery appears to have been on February 12, 1970. Subsequently, there was some discussion between the city attorney and Mr. Cummings on the part of the city, and the plaintiffs, but no agreement was reached and no formal claim was filed.
On October 8, 1970, more than nine months after the occurrence, the plaintiffs gave the mayor this notice:
"Dear Mayor. This is to notify that on January fourth and fifth, I experienced a great deal of difficulty with the sewer system of Winston-Salem, North Carolina. A back up in the sewer line caused a great deal of damage to my home and personal property. I have been in contact with some of the City's agents but have received no satisfaction. I thought it might be of help to write to you concerning this matter. I will appreciate all you can do for me. Sincerely, E. L. Johnson."
Mr. Johnson testified: "Other than this letter and what I have testified to, there was no other contact with the City." The other testimony related to Mr. Johnson's dealings with the maintenance crew, the claim agent, and the city attorney.
The city charter was introduced in evidence. Section 115 provided that: "All claims or demands against the City of Winston-Salem arising in tort shall be presented to the board of aldermen of said city or to the mayor, in writing, signed by the claimant, his attorney or agent, within ninety (90) days after said claim or demand is due or the cause of action accrues; . . . and, unless the claim is so presented within ninety (90) days after the cause of action accrued and unless suit is brought within twelve (12) months thereafter, any action thereon shall be barred."
The trial court adjudged that the plaintiffs' action was in tort and that they had failed to file the written notice of loss with the city aldermen or mayor within ninety days as required by the city charter. The court entered judgment, on defendant's motion, sustaining the defense and dismissing the claim.
Within the time required, the plaintiffs prosecuted an appeal in the Court of Appeals which affirmed the judgment. Our writ brought the case here for further review.
The plaintiffs' claim is based on a negligent failure of the city properly to inspect, to discover and remove defects, and to keep in good repair its sewer line along Milton Drive. The evidence indicated the city's street maintenance crew had caused sand and gravel to accumulate at the point of joinder between the city's main sewer line and the plaintiffs' branch line thus causing the back-up and overflow into the plaintiffs' home. The plaintiffs introduced ample evidence of the resulting damage.
After hearing the evidence, the trial court properly concluded the plaintiffs' claim was based on the defendant's tortious failure properly to maintain its sewer line and that the plaintiffs' claim was never filed with the board of aldermen and was not filed with the mayor until more than nine months after the plaintiffs sustained their damage.
The evidence disclosed that the agents of the sewer department and of the city's claims department had immediate notice of the plaintiffs' damages and the facts upon which their claims were based. However, the trial court and the Court of Appeals based decision on the plaintiffs' failure to give the board of aldermen or the mayor the written notice required by Section 115 of the defendant's charter, Chapter 232, Private Laws, 1927.
The lawmaking body of the State required that notice of tort claims in writing should be filed with the board of aldermen or the mayor within ninety days of the time the damage occurred. The board of aldermen and the mayor direct the city's governmental operations. They actually employ hundreds of agents to carry on the city's activities. Obviously, a requirement that a claim against the city be filed with the board of aldermen or the mayor is a reasonable requirement. They are charged with the duty of considering and passing on the validity of the claims. Notice to other agencies does not comply with the requirements of the law.
In the case of Sowers v. Warehouse, 256 N.C. 190, 123 S.E.2d 603, this Court discussing Section 115 of the city charter used this language:
"Plaintiff did not plead she had given notice as required by Section 115 nor did she plead any facts tending to show her mental or physical inability to give the required notice. . . .
"Plaintiff's failure to comply with the requirements of Section 115 of its charter constitutes a bar to her alleged action against the City of Winston-Salem. This was sufficient to require that the court grant the motion of the City of Winston-Salem for judgment of involuntary nonsuit."
The action involved an injury resulting from the defendant's defective sidewalk.
In Carter v. Greensboro, 249 N.C. 328, 106 S.E.2d 564, this Court said:
"Ordinarily, the giving of timely notice is a condition precedent to the right to maintain an action, and nonsuit is proper unless the plaintiff alleges and proves notice. (Citing authorities.) However, there is an exception to the rule. The plaintiff may relieve himself from the necessity of giving notice by alleging and proving that at the time notice should have been given he was under such mental or physical disability as rendered it impossible for him by any ordinary means at his command to give notice; and that he actually gave notice within a reasonable time after the disability was removed. (Citing authorities.)"
In addition to the cases cited in Sowers and Carter, see the following: Webster v. Charlotte, 222 N.C. 321, 22 S.E.2d 900; Foster v. Charlotte, 206 N.C. 528, 174 S.E. 412; Dayton v. Asheville, 185 N.C. 12, 115 S.E. 827; Pender v. Salisbury, 160 N.C. 363, 76 S.E. 228.
The statute and case law of North Carolina provide that as a part of a cause of action founded in tort against a municipality, the complaint must allege and the evidence must disclose that a written claim signed by the plaintiff or his attorney be filed either with the board of aldermen or the mayor of the city within ninety days after the cause of action accrued. Otherwise the action is barred and will be dismissed. Anything short of a written claim signed by the plaintiff or his attorney and filed with the board of aldermen or the mayor within the ninety days, required a dismissal of the action.
In Pender v. Salisbury, supra, the plaintiff's intestate was thrown from a wagon as the result of a defect in the street. The required notice of the claim for the wrongful death was not given. The plaintiff sought to supply the defect by showing the mayor of the city was actually present at the time of the accident and had first hand information of the injury. This Court said: "`The municipal officers of a town cannot waive any statutory requirement as to notice of claim imposed for the protection of the municipality.'"
Although the evidence in this case was sufficient to disclose that the claim agent and the attorney of the city had first hand information of the plaintiffs' damage and the cause of it, this knowledge was not sufficient to supply the requirement that a written claim be filed with the board of aldermen or the mayor.
The statute and the decided cases do not permit the court to repeal the plain wording of the requirement that notice in writing be given to the named officials within ninety days from the injury. Relaxation of the rules is within the jurisdiction of the agency that makes them — that is the General Assembly. The legislative hall — not the courthouse is the proper place to change the rule. The stability of court decisions is of great value. Thus, we feel required to hold that the trial court in entering the judgment dismissing the action, and the Court of Appeals in affirming the judgment, acted within the requirements of law. Nothing need be added to the opinion of the Court of Appeals on other questions discussed in the briefs. Though we sympathize with the plaintiffs in their loss, we do not feel at liberty to disregard the statute and the decided cases. Hence, we conclude that the judgment of the Court of Appeals should be
Affirmed.