Luke v. City of Keokuk

AlbeRT, J. In ber petition Nora B. Luke, tbe appellee, alleges that she sustained personal injuries by reason of defective streets in the appellant city. On the 8th day of April, 1925, she filed with the city clerk of the city of Keokuk her verified statement of claim, the material part of which, for the purpose of this appeal, is as follows : “Notice is hereby given that the undersigned Nora B: Luke claims damages from the city of Keokuk in the sum of $5,000 on account of injuries! sustained by her from a fall upon the walk and curb in said city of Keokuk, located on the northerly side of Main Street between Third and Fourth Streets in front of a building known as 321-23 Main Street, said fall having occurred on the evening of March 22d.” This is followed by a statement of the circumstances of the fall, and a detailed description of the injury resulting. The statement also sets out certain grounds of negligence. To the petition, based on the verified statement, the appellant filed a demurrer, the grounds of which are as follows: “(1) Because, under the statutes of the state of Iowa, it is the condition precedent to the maintenance of this action that a verified statement of the time of injury shall be presented to the council or filed with the city clerk with-30 days after said alleged injury, and the petition shows on its face that no5 statement was presented to the council or to the clerk. (2) Because the petition shows on its face that this action is barred by the statute of limitations, because no written verified statement of the time the injury occurred has been presented to the council of the city of Keokuk or filed with the city clerk within 30 days after plaintiff’s alleged injury.” The district court' overruled the demurrer; hence this appeal. It is conceded that the defendant corporation is a city under special charter. Section 6734, Code of 1924, reads in part as follows: . *1125 “In all cases of personal injury or damage to property resulting from defectiye streets or sidewalks, * * * no suit shall be brought against any such city after three months from the time of the injury or damage, and not then unless a written verified statement of the amount, nature, and cause of such injury or damage, and the time when and the place where .such injury occurred, # * * shall be presented to the council or filed with the clerk within 30 days after said alleged injury or damage was sustained.1 ’ The general Statute of Limitations governing actions of this kind, to wit, Subdivision 1 of Section 11007, Code of 1924, has no application to the question under consideration, and the decisions made under that section are of little aid in the consideration of the question in hand. That statute is fully discussed and elaborated upon in the case of Howe v. Sioux County, 180 Iowa 580, in which case this court reached the conclusion that the aforesaid general statute was purely a statute of limitation, and not a condition precedent to bringing 'an action. A reading of the two statutes shows that the aforesaid Subdivision 1 of Section 11007 is purely a limitation statute, because under that section an action may be brought at any time within 60 days from the happening of the accident, without the serving of any notice whatever, and, if the notice were served, then the statute was tolled beyond the 3-months limitationwhereas, the statute governing the px'esent case (the appellant being a city under special charter), provides that no suit can be brought against the city after 3 months, and cannot be brought within the 3-months period unless the written, verified statement provided for shall be filed within 30 days after the injury. Under this section of the statute, the filing of the verified statement is a condition precedent to the bringing of the action; or, to state it another way, no action can be maintained until such statement is first filed. The question here is, "What shall be the contents of such verified statement, in order to bring the parties within the provisions of this section of the Code? *1126 *1125 The verified statement above referred to contains only this statement relative to the time when the accident occurred: “Said fall having occurred in the evening of March 22(1.’’ Sec *1126 tion 6734, above quoted, requires that the veri-ge(j statement set out “the time when and the place where such injury occurred.” The aforesaid Subdivision 1 of Section 11007 provides that the written notice shall specify “the time, place, and circumstances of the injury.” It is apparent, therefore, that the legislature, in both instances, made time one of the necessary elements to be set out in said statement. In the following eases we held that a notice that did not designate the place where the accident occurred was insufficient. Buchmeier v. City of Davenport, 138 Iowa 623; Frazee v. City of Cedar Rapids, 151 Iowa 251. In Neeley v. Town of Mapleton, 139 Iowa 582, we said that the purpose of this notice was “to convey to the town council prompt information of the time, place, and circumstances of the injury, so that investigation may be had while the facts are fresh * * * .” In the if owe case, referring to the above, we said: ‘ ‘ The notice^referred to has been liberally construed by the courts-generally, but, so far as we have been able to find, no court has ever held a notice sufficient which omitted to state one or more of the three essential requirements of the notice. ’ ’ By reason of these requirements of the statute, a municipality is aiforded some protection against stale claims or the connivance of public officials, and is given an opportunity to investigate the source of the claim at a time when the evidence relating to it is fresh and can be easily gathered. We cannot understand why it is not just as important that the time be specific as that the place be specifically pointed out. One is just as important as the other. Authorities are not very numerous on this proposition, but in White v. Town of Stowe, 54 Vt. 510, an exact replica of the present situation existed. Their statute provided that no action could be maintained unless a written notice were given within 30 days of the occurrence of the injury,- stating the time when and the place where the injury was received. In that action, the accident was alleged to have occurred on the 22d day of July, no year being stated. Identically the same situation exists in the instant case. The Yermont court said: “The benefit that it was designed towns should derive from the giving of the notice required by the act of 1870 was that *1127 they might be advised of the kind and character of claims that might be made against them and prepare their defense; and in order that the notice may be of value to them for that purpose, the time and place of injury must be made specific. It must be so certain in description of time and place as to impose a duty upon the selectmen to investigate the claim. If the notice does not state that the injury happened on a highway that the town was bound to keep in repair, the selectmen would be justified in disregarding it. So, if the notice does not state that the injury happened within thirty days next preceding its receipt, they might well say that the injured party had no claim against the town.” See, also, 17 Corpus Juris 1130. The case further holds that parol evidence is not permissible to supply the legal requirements of the written notice, and that the sufficiency of this must be determined without reference to anything which occurred subsequently to its receipt. The ease further proceeds: “Testing the notice by what it contained, it was manifestly defective in omitting to state with the required certainty the time when the injury was received * * * . ’ ’ In this case, the notice that was served on the city contained no statement of the year in which the accident happened. It may have been the present year, or any year in the past. The statement is defective in this respect, and this being a condition precedent to the bringing of the action, we are of the opinion that it does not comply with the requirements of the statute, and hence was no notice. We are quite familiar with the rule that, in matters of this kind, a liberal construction is to be given to the statement filed, but we insist that the requirements of the statute be complied with. In Blackmore v. City of Council Bluffs, 189 Iowa 157, referring to this question, we said: “While the statute should be liberally construed, no construction should be indulged in that emasculates it, or deprives the city of the notice which it is the intent of the statute that it should have, to wit, notice of the time, place, and circumstances of the injury. * * '* The notice is, therefore, sufficient if it conforms to the statute as to time, place, and circumstances, and is in writing, and is served * * * .” *1128 Tbe district court was in error in its bolding, and the case is reversed. — Reversed. De G-rafe, C. J., and Stevens, Favtllb,' Vermilion, and Morling, JJ., concur.