Crumbley v. City of Jacksonville , 102 Fla. 408 ( 1931 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This was an action for personal injury to the plaintiff alleged to have been caused by a limb falling on the plaintiff as he passed under a tree along Stonewall Street in the City of Jacksonville. It was alleged that the limb was caused to fall on the plaintiff by reason of it having been cut by the defendant from the tree upon which it grew while the defendant was engaged in the business of trimming limbs from trees to make room for its electric light wires used by it in its business of furnishing electric power and lights.

Demurrer was sustained to the original declaration and plaintiff then filed a second amended third count and a fourth count to his declaration. To these counts defendant filed separate demurrers. These demurrers were sustained and plaintiff thereupon abandoned all other counts of his declaration and refused to plead further. Final judgment was entered for the defendant.

The demurrer to the second amended third count of the declaration as grounds therefor alleged, in part:

"Said count shows upon its face that said alleged notice was not given in manner and form as required by law. Said Count affirmatively shows that said notice fails to describe the place where said injuries were alleged to have occurred.

"Said count affirmatively shows that said notice fails to give the names and addresses of the witnesses to said injury."

Granting for the sake of argument that the provision in the City charter requiring notice in cases of this kind is valid, it would appear from the allegations in plaintiff's amended third count that the City waived the defect in the notice. This count alleges that notice was given within thirty days and sets out the notice. The City contends that the notice was defective in that it did not sufficiently specify the place where the injury occurred nor did it give the names of any witnesses thereto. The notice says that the injury took place while the plaintiff was walking along the sidewalk between Park Street and Riverside Avenue, about 4 P. M. on February 14, 1927. It is argued in behalf of the City that the two streets mentioned run paralled for about a mile and that the place of the injury was not therefore alleged with any certainty. It is true also that the notice does not set forth the names of any of the witnesses. The attorney who gave the notice states therein that he did not know the names of any of the witnesses. However, the allegations of this count go on to show that neither the City Attorney nor the City Commission made any suggestions that they desired a more detailed statement of the claim, but that they proceeded to act thereon, and within 30 days after the happening of said injury they rejected said claim on the sole ground that the circumstances under which said injury occurred created no legal liability on the part of the defendant to the plaintiff, and that thereby the defendant and its officers waived any objection to the form of the notice given it as aforesaid.

Even if this provision of the City Charter requiring notice be valid, and even though the City authorities may not have had the legal right to entirely waive the giving of notice, they yet had the power to waive a mere defect in the form of the notice. The object of this charter provision is to give the City authorities an opportunity to investigate the facts concerning a claim within a short time after the injury complained of occurs. While the form of the notice in this case did not fully comply with the requirements of the charter provision, it is plain from the allegations of this count that the notice had fulfilled its purpose, that the City Attorney and City Commission had investigated the matter and that they rejected the claim, not on account of any defect in the notice, but, because, under the circumstances under which the injury occurred, they reached the conclusion that no legal liability on the part of the City existed. All of this happened within the 30-day period, and amounted to a waiver of the alleged defects in the notice. When this notice was received, the City authorities might have denied the claim on account of the defect in the notice, or it might have waived the defect and proceeded to a determination of its liability. It accepted the latter alternative and then denied the claim on the sole ground that there was no legal ground of liability for the injury to plaintiff, and without objecting to the form of the notice. The defects in the notice were largely technical, the defendant suffered no harm by reason thereof, and the facts alleged show a waiver of such defects. There are some cases outside this jurisdiction upholding this doctrine of waiver as applied to a city in cases of this kind, but it seems to us to be so just and so well supported by generally recognized principles of law applicable to like situations that no citation of authorities is necessary to uphold it.

Furthermore, in arguing that the court erred in sustaining the demurrer to the 4th count, it is contended that this provision requiring notice within 30 days from the injury is unconstitutional as applied to cases brought for damages for injuries inflicted in the course of the operation by the City of its electric light and power business in itscorporate or proprietary rather than in its governmental capacity. In Bryan v. City of West Palm Beach, 75 Fla., 19, 77 So., 627, it was said:

"Section 94, c. 6411, Acts of 1911, cited supra, seeks to give to the city immunity from liability for personal injuries caused by the omission to perform, or the improper performance of one of its municipal or private duties, as distinguished from its governmental, and if it is within the power of the Legislature to exempt cities from such liability — a question which we do not decide in this case — the courts should not so extend the privileges and immunities for liability for acts of omission as to include acts of commission which are not specified in the act."

See also Kaufman v. City of Tallahassee, 84 Fla., 634, 94 So. 697.

In Sebring v. Avant, 95 Fla. 960, 117 So. 383, it was held that a city engaged in generating and selling electricity comes within the operation of the hazardous occupations act and could not therefore plead assumption of risk. It is contended that when a city is engaged in the business of generating and selling electricity, its liability for torts committed in the operation of such business should be governed by general law applicable to all persons and corporations engaged in such a business, and that any special law granting it immunity from suit under circumstances which would afford no immunity to others engaged in the same business, would constitute class legislation, and that such a special act would be invalid under the provisions of those sections of our State and Federal constitutions which guarantee the equal protection of the laws.

See section 1 of fourteenth amendment to Federal Constitution and Sections 1, 4 and 12 of the Declaration of Rights in our State Constitution.

In State v. Jacksonville Terminal Company, 41 Fla. 363, 27 So. 221, in which the opinion was written by CHIEF JUSTICE TAYLOR, it was held that while the provisions of Sec. 1 of the 14th Amendment to the Constitution of the United States do not preclude legislation reasonably classifying persons and things, it does require the same means and method to be applied impartially to all the constituents of a class so that the law shall operate equally and uniformly upon all persons in similar circumstances.

It is further insisted that even if a general act requiring such notice of claim to be given within 30 days as a condition precedent to a right of recovery should be considered valid if it applied to all claims against all of the municipalities of the State, that a special act of this nature, applying only to one city, as in this case, could not be held valid, at least as to cases brought to recover for injuries received in the course of the operation by the city of the business of generating and selling electricity; that, indeed, the validity of such a general statute would be doubtful if it did not apply to all persons and corporations engaged in the same business, whether municipal, private corporations, or persons. Furthermore, that this provision of the city charter conflicts or comes dangerously near conflicting with that provision of Sec. 20, Art. 3, of our Constitution which prohibits the passage of any special or local law regulating the practice in courts of justice, except municipal courts. But we do not deem it necessary to decide these questions upon the record here. The amended third count shows that notice was given and the defect therein waived. True, the fourth count omits the allegation as to notice, but the courts will not declare statutes unconstitutional where the case can be fairly tried or decided without doing so.

The court is grounding its decision in this case upon the proposition that the court below erred in sustaining the demurrer to plaintiff's amended third count, on the ground that such count shows that the defect in the notice had been waived by the City. This count is held to state a cause of action.

Reversed and Remanded.

WHITFIELD, ELLIS, TERRELL AND DAVIS, J.J., concur.

BUFORD, C.J., dissents.