Diamond Iron Works v. City of Minneapolis , 1915 Minn. LEXIS 684 ( 1915 )

Brown, C. J.

This action was brought to recover damages for injury to plaintiff’s property caused, as alleged in the complaint, by water flowing into the basement thereof from a broken water main, through which water is conducted into the city for public as well as private use. The water main was under ground, and the complaint alleges that the bursting thereof and the resulting escape of water was due to the carelessness and negligence of the city. Other facts pleaded disclose the nature and extent of the injury and the damage suffered thereby. It also appears from the complaint that the notice and claim provided for by section 768, R. L. 1905, were not given or presented to the city council as there required, within 30 days from the date of the injury, or at all. A general demurrer to the complaint was sustained and plaintiff appealed.

The only question presented is whether the statute referred to applies to a case of this kind. We answer the question in the affirmative.

The statute has been before the court for construction and application in numerous cases. As originally enacted it was held inapplicable to cases of injury to an employee of the municipality, involving the relation of master and servant. Kelly v. City of Faribault, 95 Minn. 293, 104 N. W. 231. It was held in Orth v. Village of Belgrade, 87 Minn. 237, 91 N. W. 843, following Maylone v. City of St. Paul, 40 Minn. 406, 42 N. W. 88, construing a similar provision of the charter of St. Paul, that the statute was intended to apply to common law actions, and not to actions given by statute for death by wrongful act. These decisions have been followed and applied in subsequent cases. The statute was amended by chapter 248, p. 459, Laws 1897, and an effort was there made to bring all classes of actions against municipal corporations within its terms, but in Megins v. City of Duluth, 97 Minn. 23, 106 N. W. 89, construing the amendment in the light of the restrictive character of its title, the court held that it applied only to actions for personal injuries. The action then before the court was similar to the one at bar, and had the statutes remained unchanged, the rule of that case would apply. But in the revision of 1905 the statute was so amended as to leave no fair doubt of the intention of the legislature to include within its scope actions theretofore held by tbe court not witbin tbe former statute. Tbe amended statute was given tbis effect in Mitchell v. Village of Chisbolm, 116 Minn. 323, 133 N. W. 804, though it was beld in Gaughan v. City of St. Paul, 119 Minn. 63, 137 N. W. 199, that tbe amendment was not intended to abrogate the rule of tbe Kelly case where tbe statute was beld not applicable to claims arising out of tbe relation of master and servant. In tbe Cbisbolm case the statute was beld applicable to tbe ease of a pedestrian who was injured by blasting operations negligently carried on by tbe municipality, and a failure to give tbe notice was hpld fatal to a right to recover. We are ashed in tbe case at bar to bold that tbe statute has no application to actions against a municipality for injuries to property, and to follow and apply tbe Megins case. Tbis we are unable to do. Tbe change in tbe statute by tbe revision of 1905, and after tbe decision was rendered in that case, leaves no room for a construction thereof as here contended. We must apply it, as said in tbe Cbisbolm case, to give effect to tbe clearly disclosed legislative intent. So construing it, we bold that it applies to a case of tbis kind, and that tbe rule of tbe Megins case must be taken to have been abrogated by tbe amended statute.

Tbe other points raised in tbe briefs are not seriously pressed and do not require discussion. No facts are alleged in tbe complaint sufficient to justify tbe conclusion that tbe defendant is es-topped from urging in defense that tbe proper notice was not given.

It may be noted in taking leave of tbe case that for all future purposes tbe act of 1913 finally solves all doubts as to what cases come witbin tbe scope of tbe statute. Section 1786, et seq., G. S. 1913. That statute does not, however, apply to tbe case at bar. Tbe injury to plaintiff’s property occurred before its passage.

Order affirmed.