Blumrich v. Village of Highland Park

Grant, J. (after stating the facts). Two questions are presented: (1) Did the action of the council operate as a waiver of the provisions of the statute in regard to the notices required? (2) Was there sufficient evidence of [211] negligence on the part of the defendant to justify the sub-' mission of that question to the jury F Plaintiff neither filed any notice with the clerk, nor presented any claim to the council of the village in writing. 'The verbal report which, it is urged, was made hy her son, specified no damages, and in no respect complied with the statute. In every case where this court has held that the municipal authorities, have waived the provisions of this statute, there has been a written claim which was defective, or the case has been tried without any such defense being set up, and the attempt was made to raise the question upon a motion for a new trial. In Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444), the question was raised for the first time on the part of the defense on a motion for a new trial. In Griswold v. City of Ludington, 116 Mich. 401 (74 N. W. 663), an unverified claim was presented and acted upon. The same state of facts existed in Wright v. Village of Portland, 118 Mich. 23 (76 N. W. 141). In Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78), the claim was verified by the attorney for the claimant, whose verification was void under the statute. No objection was made. The claim was duly considered and rejected. In Foster v. Village of Bellaire, 127 Mich. 13 (86 N. W. 383), a written claim was presented, hut without itemizing or verification. The opinion does not show what acts were relied upon to constitute a waiver. The question of waiver was left to the jury. We are now asked to carry this doctrine of waiver still further, and hold that where a party appears for the claimant without any authority being shown, — for there is nothing in the record to show that plaintiff ever authorized her son to present this claim to the council, — and states that an injured party presents a claim, and wants to know what the village is going to do with regard to it, and the matter is then referred, not to the usual committee for the consideration of claims, but to another committee, which does not' even meet, and makes no report, these wise provisions of the statute have [212] been waived. If this be the case, the statute is of little worth. Everybody is presumed to know the law- If this plaintiff authorized her son to appear before the council, she probably understood that some notice was necessary. The object of this law is not only to notify the village authorities, so that they may at once examine into the case, the nature of the injuries, and the justice of the claim, but it •is also in the interest of the public and the taxpayers, so that they may know what claims are made against the corporation. Another evident purpose of the statute is to promptly put claimants upon record as to the manner of the accident, the character of the injury, the defect, as well as time and place, and thus avoid these matters resting in parol until the day of trial. Every purpose of the statute is annulled if the ruling of the court below prevails. The committee did not meet, and made no report. Two of them met, and one of them notified the son that his mother should have filed a claim in writing. Whether this was before or after the expiration of 60 days is not entirely clear. The testimony of the son is such that a jury might find upon this point either way. We think there was no waiver of the statute, and that the court should have directed a verdict for the defendant. It follows that the judgment must be reversed, and new trial ordered. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.