Cropper v. City of Mexico , 1895 Mo. App. LEXIS 433 ( 1895 )

Bond, J.

Plaintiff stepped into a hole on a sidewalk in the city of Mexico, Missouri, sustaining injuries thereby, for which he recovered judgment for the sum of $750, from which the defendant appealed, and also from a judgment of the court overruling its motion to retax costs as to such as had accrued subsequently to the presentation by plaintiff of his claim against the defendant to the city council. There was evidence to support the verdict of the jury.

The first point urged for reversal is that, the defendant being a city of the third class, plaintiff was 'not entitled to sue under the act of the legislature embracing cities of that class, because, prior to the institution o'f said suit, no claim was presented as contemplated by that act. The act relied upon in support of this contention is, to wit:

‘ ‘All claims against the city must be presented in writing, with full account of the items, and verified by the oath of the claimant or his agent that the same are correct, reasonable and just, and no claim shall be audited or allowed, unless presented and verified as provided in this section. No costs shall be recovered against the city in any action brought against it for any unliquidated claim which has not been presented to the council to be audited, nor upon claims allowed in part, unless the recovery shall be for a greater sum than the amount allowed, with interest due: Provided, that no action shall be maintained against such city in exercising or failing to exercise any corporate power or authority, in ease where such action would not lie against a private individual under like circumstances.’’ Acts of 1893, p. 89, see. 104.

Neither the language of the foregoing section, nor any fair construction thereof, warrants the position assumed by appellant, that its operation embraces a cause of action for damages sustained by personal injuries. The terms of the act require the presentation of claims against the city in writing, with a full account of the items, and verified as correct. This plainly denotes that such claims are intended as could be presented in the way described. Obviously, that method could not be employed when the demand arose from a pure tort, as in the present case. It has accordingly been held in other states having similar statutes, that demands arising ex delicto are not included in such enactments. Barrett v. Village of Hammond, 58 N. W. Rep. 1053; Jung v. City of Stevens Point, 74 Wis. 547; Bradley v. City of Eau Claire, 14 N. W. Rep. 10; Gage v. Village of Hornellsville, 106 N. Y. 667; Hunt v. City of Oswego, 107 N. Y. 629; Taylor v. City of Cohoes, 105 N. Y. 54. It is evident that the section, supra, had no application to the present case.

The next error assigned relates to the question put to plaintiff’s witnesses, as to whether two of the city councilmen “traveled over this walk in going down town.” There was no impropriety in this inquiry. The members of the council of a city of the third class are charged with the duty of acting with respect to its streets and sidewalks (R. S. 1889, sec. 1515), and circumstances tending to show knowledge on the part of such officers of the dangerous condition of such streets and sidewalks are relevant as tending to show notice of defect to the city. A municipality is affected with notice of the unsafe condition of its streets and sidewalks by proof of knowledge of that fact on the part of those agents who are charged with the control of its streets and sidewalks, or by evidence that the unsafe condition has existed sufficiently long to raise an inference of notice thereof on the part of the city. Bonine v. City of Richmond, 75 Mo. 437; Mans v. City of Springfield, 101 Mo. 613; Barr v. City of Kansas, 105 Mo. 550, 556.

Neither is there any merit in the point that the court refused instruction number 6, requested by appellant, wherein the jury were told “that there is no evidence that the city, or any of its officers charged with any duty regarding sidewalks, had any notice of the condition of the sidewalk where plaintiff was injured.” The record shows ample evidence of the prior existence of the defective condition of said sidewalk, from which the jury might properly have inferred notice on the part of the city or its officers whose duty it was to control the sidewalk.

Appellant assigns for error the refusal of his motion for new trial, grounded on newly discovered evidence set out in the affidavits filed. We have examined the affidavits in support of and in opposition to this point, and we are not satisfied that a new trial would result in a different verdict. We can not, therefore, hold that the trial court abused its discretion in overruling the motion for new trial. Mayor of Liberty v. Burns, 114 Mo. loc. cit. 432.

Neither did the trial court commit any error of which appellant can complain, in taxing respondent with the costs accruing prior to the presentation of his demand to the city. Such presentation was, as has been shown, unnecessary. The result is that the judgment herein will be affirmed.

All concur.