TaiLexi AI U.S. Case Law

Anthony v. City of St. Joseph

J. P. ANTHONY v. CITY OF ST. JOSEPH

Anthony v. City of St. Joseph, 133 S.W. 371 (Mo. Ct. App. 1911)
Download
Format
Include

Star paging (*137) is kept for pin cites.

Court
Missouri Court of Appeals · State Appellate Courts
Decided
January 2, 1911
Judges
Ellison
Citations
133 S.W. 371152 Mo. App. 1801911 Mo. App. LEXIS 79
Disposition
Reversed.
Cited by 3
Headnotes
MUNICIPAL CORPORATIONS: Personal Injury: Notice. A notice of injury received on a street of a city, which is required by statute, must not be misleading; and where 'it states that an injury received on the 13th of August, occurred on the 14th of that month, it is fatally defective and no action can be maintained.
Summary
Appeal from Buchanan Circuit Court. — Ho». L. J. Eastin, Judge. (1) The written notice served on the city was defective, and therefore defendant’s demurrer should have been sustained. R. S. 1899, sec. 5724; Cardner v. City of New London, 28 Atl. R. 42; Larkin v. Boston, 128 Mass. 522; F’religh v. Directors of Sogrates, 70 Hun. 589, 24 N. Y. Sup. 182; Donnelly v. City of Fall River, 132 Mass. 299; White v. Stowe, 54 Vt. 510; Lilly v. Town of Woodstock, 59 Conn. 219', 22 Atl. R. 40; G-iddings v. Iowa, 54 Vt. 346 ; Taylor v. Inhabitants of Woburn, 130 Mass. 498; Sherry v. Town of Rochester, 62 N. EL 346; Lyons v. City of St. Joseph, 112 Mo. App. 683; City of Lincoln v. G-rant, 56 N. W. 905; Trost v. City of Caselton, 79 N. W. 1071; Fields v. Railroad, 4 Atl. R. 105; Canter v. St. Joseph, 126 Mo. App'. 629. (2) Instruction number 6 is erroneous, for the reason that it does not .limit the amount plaintiff may recover for medical attention to one hundred dollars, the amount asked for in the petition. Ingles v. Railroad, vol. 129, No. 3, S. W. 493; Radke v. Basket and Box Co., vol. 129, No. 3, S. W. 512; Tinkle v. Railroad, 212 Mo. 471; Smoot v. K. C., 194 Mo. 522.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Ellison

Text extracted by OCR from a scanned original; check the original for exact wording.

ELLISON, J.

Plaintiff’s action is founded on an injury received on one of defendant’s streets, which is charged to have been negligently maintained. The judgment in the trial court was for plaintiff.

The petition states and evidence shows the injury occurred on the 13th day of August, 1908, while the notice to the city which the statute (sec. 5724, R. S. 1899) requires to be given, is that it occurred on the 14th of that month. The variance between the true date and the notice is fatal. [Canter v. St. Joseph, 126 Mo. App. 629 ; Gardner v. New London, 63 Conn. 267 ; Larkin v. Boston, 128 Mass. 521 ; White v. Stowe, 54 Vt. 510 .] In Gardner v. New London, the notice was that the injury was received on the 5th of May, 1892, when, in fact, it was shown to be on the second of that month. The variance was held to be fatal; and the same result followed in White v. Stowe, where the day and month were correctly given, but the year omitted. In this case the variance was one day, but we cannot see how any difference is to be made or distinction *182 drawn between one day and any greater number of days.

In some states ciyil actions against municipalities are not allowed at all, tbe remedy being to punish the party chargeable with responsibility for the defect in the street. But in others, this among them, the action is allowed upon condition that the city be first notified of the time and place. This notice is a valuable safeguard for the city, and the courts have never hesitated to require it.

The judgment will be reversed.

All concur.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 3 cases

View all citing references →
1914: 11933: 11954: 119142026peak 1914 · 1

Relies on it most ⓘ

  1. Brickell v. KANSAS CITY, MO265 S.W.2d 342 (Mo. 1954)
  2. Willis v. City of St. Joseph171 S.W. 27 (Mo. Ct. App. 1914)
  3. Kling v. Kansas City61 S.W.2d 411 (Mo. Ct. App. 1933)

Most recent

  1. Brickell v. KANSAS CITY, MO265 S.W.2d 342 (Mo. 1954)
  2. Kling v. Kansas City61 S.W.2d 411 (Mo. Ct. App. 1933)
  3. Willis v. City of St. Joseph171 S.W. 27 (Mo. Ct. App. 1914)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

DepthCaseCited by
Gardner v. City of New London, 28 A. 42 (Conn. 1893) 33
Larkin v. City of Boston, 128 Mass. 521 (1880) 19
White v. Town of Stowe, 54 Vt. 510 (1881) 15
Canter v. City of St. Joseph, 105 S.W. 1 (Mo. Ct. App. 1907) 15

Keyboard shortcuts

/Focus the search box
j kNext / previous result
EnterOpen the selected result
xAdd / remove the selected result from the download list
n pNext / previous search term in a case
cCopy the citation of the current case
+ −Larger / smaller reading text
?Show this list