Methvin v. County of Monroe

329 Mich. 426 (1951)

45 N.W.2d 347

METHVIN v. COUNTY OF MONROE.

Docket No. 62, Calendar No. 44,854.

Supreme Court of Michigan.

Decided January 8, 1951.

John C. Timms, for plaintiff.

Robert N. Sawyer, prosecuting Attorney, for defendant.

REID, C.J.

Plaintiff claims in his declaration that the defendant county failed to properly maintain in a condition fit and safe for public travel, a certain *428 bridge and approach thereto situate on a county highway in the county of Monroe and that in consequence plaintiff suffered (beside damage to his automobile) great personal injuries, including 5 skull fractures. Plaintiff further claims in his declaration that his mental faculties as a result of the injuries he received became impaired. From an order of the trial court dismissing the cause of action, plaintiff appeals.

Plaintiff's declaration claims that the highway and bridge were in a defective and dangerous condition and that there was a series of elevation and depressions in the highway at a point where the bridge and highway join, that the railings of the bridge were in a defective and dangerous condition, the paving across the bridge worn, containing many holes which were dangerous and hazardous, all of which condition of approach and bridge had existed for more than 30 days before the accident.

Plaintiff claims that while riding in and operating his motor vehicle at a reasonable and proper speed, he started to cross the bridge, that as he entered the bridge his vehicle bounced on the elevations and depressions and that it was thereby thrown out of control, striking the rail on 1 side of the bridge and skidding across 3 or 4 times, and then went through the railing on the north side of the bridge, where his vehicle fell about 30 feet to the ground below.

The accident is alleged to have occurred on October 26, 1948, and on December 23, 1948, 58 days after the happening of the injury, plaintiff's attorney filed a notice with the county clerk of Monroe county of the happening of the accident, describing in said notice the condition of the bridge and approach thereto. The notice contained the statement, "There were no witnesses to the accident."

*429 On February 1, 1949, the following notice was delivered to the county clerk:

"On December 23, 1948, a notice of claim for damages in the above captioned matter was filed with you. At that time it was stated that there were no witnesses to this accident. This was an oversight which has recently come to my attention, and which I wish to rectify at this time.

"There was 1 witness to my knowledge and he was also a passenger in the vehicle which Mr. Methvin was driving. The witness' name is Felix Collier. He resided for some time after the accident in Lawrenceburg, Tennessee, but has now returned to this city and can be reached at 210 Comstock street.

"I regret the error occurred but feel certain that this additional information has corrected the matter.

"Very truly yours, "JOHN C. TIMMS."

As to the notice required to be given the county, the pertinent provision of the statute, CL 1948, § 224.21 (Stat Ann § 9.121) is as follows:

"Provided, however, That no county, subject to any liability under this section, shall be liable for damages sustained by any person upon any county road, either to his person or property, by reason of any defective county road, bridge or culvert under the jurisdiction of the board of county road commissioners, unless such person shall serve or cause to be served within 60 days after such injury shall have occurred, a notice in writing upon the county clerk or deputy county clerk of such county, which notice shall set forth substantially the time when and place where such injury took place, the manner in which it occurred, and the extent of such injuries as far as the same has become known, the names of the witnesses to said accident, if any, and that the person receiving such injury intends to hold such county liable for such damages as may have been sustained by him."

*430 On March 5, 1949, defendant county filed a motion to dismiss on the ground that plaintiff's notice in writing (dated December 22, 1948 and apparently filed December 23, 1948) does not conform to the statutory requirements concerning notice in relation to the names of witnesses to the accident, and that it is insufficient in details concerning the alleged defects in the highway and bridge. The trial court ruled in effect that the requirement of the statute as to giving notice was mandatory and that the notice given in the instant case was insufficient respecting "the names of the witnesses to said accident, if any."

The question involved as stated by plaintiff is as follows:

"Does the omission of the name of a witness to an accident, though known, from the notice of claim filed within 58 days following accident, upon the county clerk, under CL 1929, § 3995 (CL 1948, § 224.21[*]), void the notice, although the name and address of the witness is failed with the county clerk in a supplemental notice, within 98 days following the accident?"

We have heretofore in effect construed as mandatory the provisions of this and similar statutes requiring notice in a limited time to a public corporation as a prerequisite to an action for damages caused by negligence. See Ridgeway v. City of Escanaba, 154 Mich 68, 72, and Harrington v. City of Battle Creek, 288 Mich 152, 155. See, also, 38 Am Jur, § 703, p 405.

A notice stating, "There were no witnesses to the accident," is not a substantial compliance with the requirement of the statute when the witness is known.

There is no showing that the incorrect statement that there were no witnesses was in anywise brought *431 about by any mental incapacity of plaintiff Methvin and we do not rule upon the effect of mental incapacity as an excuse for noncompliance with the quoted statute.

Plaintiff's attorney does not disclose any justifiable reason for omitting the name of the witness to the accident from the original notice though such witness was then known.

It is not necessary in view of our determination of the case on other grounds to decide the question of sufficiency of averments of negligence.

The order appealed from is affirmed. Costs to defendant.

BOYLES, NORTH, DETHMERS, BUTZEL, CARR, BUSHNELL, and SHARPE, JJ., concurred.

NOTES

[*] Stat Ann § 9.121. REPORTER.