Summary
holding "that physical or mental incapacity excuses a failure to give the notice" under a notice-of-claim statute
Summary of this case from Doe v. District of ColumbiaOpinion
July 28, 1942.
MUNICIPAL CORPORATIONS: Negligence: Failure to Give City Statutory Notice of Damage Claim: Incapacity as Excuse. There was sufficient evidence for the jury of physical or mental incapacity of plaintiff as an excuse for his failure to give the 90-day statutory notice to the city of his claim for damages and whether or not plaintiff served the statutory notice within a reasonable time after the disappearance of the incapacity.
Appeal from Circuit Court of City of St. Louis. — Hon. Robert J. Kirkwood, Judge.
AFFIRMED.
Joseph F. Holland, George L. Stemmler, Joseph B. Haring and Orville W. Richardson for appellant.
(1) The court erred in sustaining plaintiff's motion for a new trial. Plaintiff, having admitted that he failed to give to the defendant the written notice required by R.S. 1939, Section 7636, within ninety days after his alleged fall on February 1, 1940, then failed to prove any sufficient legal excuse for failure to give such notice until his petition was served on the City on July 17, 1940. Plaintiff's reply admitted that plaintiff did not give to the defendant the ninety days' notice required by statute. Plaintiff failed to prove that he suffered from any incapacity, physical or mental, as to make it reasonably impossible for him either to serve the notice or procure it to be served within the ninety-day period prescribed by R.S. Mo. 1939, section 7636. (a) The legislative purpose of requiring that notice of tort claims against municipalities be served within a fixed period of time is a wise one, designed to prevent needless expenditure of taxes, to protect the City from stale and false claims and to enable the City to investigate the case immediately so that it may make settlement or prepare for trial. David v. St. Louis, 339 Mo. 241, 96 S.W.2d 353; Cole v. St. Joseph, 50 S.W.2d 623, 82 A.L.R. 742. (b) An injured party may be excused from complying with such statutes if he is suffering from an incapacity, physical and mental, as to make it reasonably impossible for him either to serve notice or procure it to be served within the period fixed by statute. Randolph v. City of Springfield, 320 Mo. 33. 257 S.W. 449, and subsequent appeal 275 S.W. 567. (c) The plaintiff in this case failed to show that he suffered from any such incapacity. The mere fact that he suffered pain and took sedatives during his stay in the hospital affords no excuse for the failure to give notice. The undisputed evidence showed that plaintiff could at least call or write a lawyer or ask someone else to do that for him. Hastings v. Foxworthy, 45 Neb. 676, 63 N.W. 955, 34 L.R.A. 321; Saunders v. City of Boston, 167 Mass. 595, 46 N.E. 98; Townsend v. City of Boston, 232 Mass. 451, 122 N.E. 395; Ehrhardt v. Seattle, 40 Wn. 221, 82 P. 296; May v. City of Boston, 150 Mass. 517, 23 N.E. 220; Ray v. St. Paul, 44 Minn. 340, 46 N.W. 675; Egan v. Township of Saltfleet, 29 Ont. L. Rep. 116; Goodwin v. Fall River, 228 Mass. 529, 117 N.E. 796; Hall v. City of Spokane, 79 Wn. 303, 140 P. 348; O'Connor v. City of Hamilton, 10 Ont. L. Rep. 529, reversing 8 Ont. L. Rep. 391. (2) The plaintiff's own statements that he was "half crazy" with pain and "didn't keep track of nothing hardly to know whether I was living or not" and that he did not know what he was doing, were mere conclusions, self-serving in nature, offered without further explanation or relation to any fact by which the jury could judge his capacity to hire a lawyer, and contradicted by other testimony of plaintiff himself and the hospital records. As such conclusions they had no probative force. Lindquist v. S.S. Kresge Co., 345 Mo. 849, 136 S.W.2d 303; Beitling v. S.S. Kresge Co., 233 Mo. App. 1195, 116 S.W.2d 522; Gore v. Whitmore Hotel Co., 229 Mo. App. 910, 83 S.W.2d 114; Clevinger v. St. Louis-S.F. Ry. Co., 341, Mo. 797, 109 S.W.2d 369. (a) If intended to convey the inference that plaintiff did not have mental capacity sufficient to procure service of the notice, then such conclusions were valueless as an attempt to pass upon the very matter in issue and to invade the province of the jury. Baptiste v. Boatmen's Natl. Bank, 148 S.W.2d 743. (b) In any event, such conclusions cannot prevail over evidentiary facts to the contrary. The testimony of plaintiff on cross-examination that he was conscious, rational, knew what he was doing, knew what was going on around him, and had full use of his faculties (all borne out by the hospital record, his own exhibit), at least canceled the conclusions of plaintiff on direct examination and left them without probative force. Siegel v. M.-K.-T.R. Co., 334 Mo. 1130, 119 S.W.2d 376; Steele v. K.C. Ry. Co., 265 Mo. 97, 175 S.W. 177; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644. (c) The testimony of Dr. Snyder that an individual with a fractured femur "wouldn't think very clearly" and would be in agony precluding "any possibility of thinking clearly, intelligently, rationally" was not substantial evidence that plaintiff was mentally incapacitated for any length of time whatsoever, since the doctor examined plaintiff only once, and that was nine months after the fall for the purpose of testifying in the case, did not obtain a history of plaintiff's suffering or of his treatment, did not inspect the hospital records on these points, and was not told in any hypothetical question what the previous testimony of plaintiff had been. His testimony was, therefore, a mere conclusion, with no direct evidence anywhere in the record to support it, and, as given was not explained by or related to plaintiff's own case as to any one time or period of time. Hall v. Mercantile Trust Co., 59 S.W.2d 664; De Donato v. Wells, 328 Mo. 448, 41 S.W.2d 184; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 82; Nute v. Fry, 341 Mo. 1138, 111 S.W.2d 84; Kimmie v. Terminal R.R. Assn., 334 Mo. 596, 66 S.W.2d 561. (d) Plaintiff was not incapacitated since he could procure someone else to serve the notice for him, and it is immaterial that he was physically unable to leave the hospital so long as he could call or write to a lawyer or ask that someone else do that for him. He was visited by his wife, friends and doctors during the ninety-day period, and they presumably could and would have called a lawyer upon his request. Harris v. City of Genoa, 111 Neb. 91, 195 N.W. 953; Mitchell v. City of Worcester, 129 Mass. 525; Lyons v. City of Cambridge, 132 Mass. 534; Saunders v. City of Boston, 167 Mass. 595, 46 N.E. 98; Townsend v. City of Boston, 232 Mass. 451, 122 N.E. 395; Ehrhardt v. Seattle, 40 Wn. 221, 82 P. 296; Egan v. Township of Saltfleet, 29 Ont. L. Rep. 116; McNulty v. City of Cambridge, 130 Mass. 275; May v. City of Boston, 150 Mass. 517, 23 N.E. 220; Goodwin v. Fall River, 228 Mass. 529, 117 N.E. 796. Ignorance of the law requiring service of notice can afford no excuse for failure to give notice. Giovinazzo v. Canadian Pacific Ry. Co., 19 Ont. L. Rep. 325; O'Connor v. City of Hamilton, 8 Ont. L. Rep. 391. (3) Even if for a short period between February 1st and July 17, 1940, plaintiff was incapacitated physically and mentally as to make it reasonably impossible for him to procure notice to be served, nevertheless, there was at least a five-week period immediately after his fall and before a cast was put on his leg, during which time he was not so incapacitated. He was conscious, rational, suffered comparatively little pain and was given comparatively few sedatives, made a full report and account of the accident to the police, his friends and doctors, was able to give a full past medical history at the hospital, etc. Since that first five-week period, during which time he was not incapacitated, was a reasonable time for him to give notice, it is immaterial whether or not he thereafter became incapacitated for the rest of the ninety-day period or any part of it. Harris v. City of Genoa, 111 Neb. 91, 195 N.W. 953; Townsend v. City of Boston, 232 Mass. 451, 122 N.E. 395; Benson v. Seattle, 78 Wn. 541, 139 P. 501. (4) Even if it be considered that plaintiff was incapacitated physically and mentally as to make it reasonably impossible for him to procure service of notice by someone else until April 16, at which time, according to the hospital records, his pain had abated and his capacity had been restored, plaintiff's failure thereafter to give such notice within ninety days from the removal of such incapacity, constitutes a bar to his cause of action. Hastings v. Foxworthy, 45 Neb. 676, 63 N.W. 955, 34 L.R.A. 321; Hungerford v. Village of Waverly, 125 A.D. 311, 109 N.Y.S. 438. (5) Even if plaintiff was incapacitated until May 13, 1940, at which time the cast was removed from his leg and he was up on crutches and in a wheel chair, he was entitled to no more than a reasonable time (in no event to exceed ninety days) after removal of such incapacity, if any, on May 13th. His failure to serve notice until July 17, 1940, was an unreasonable delay and barred his recovery. Forsyth v. City of Oswego, 191 N.Y. 441, 84 N.E. 392, reversing 114 A.D. 616, 99 N.Y.S. 1022, and see dissenting opinion at 99 N.Y.S. l.c. 1026. (6) The burden of proof was upon the plaintiff to show (1) that he suffered the incapacity above mentioned, (2) the date of the removal of such incapacity and (3) that he served notice of petition on the City within a reasonable time after the removal of such incapacity. In this case plaintiff failed to prove any of the three above elements of his alleged excuse. Mitchell v. City of Worcester, 129 Mass. 525; Lyons v. City of Cambridge, 132 Mass. 534; May v. City of Boston, 150 Mass. 517, 23 N.E. 220; Rogers v. Port Chester, 234 N.Y. 182, 137 N.E. 19; Hungerford v. Village of Waverly, 125 A.D. 311, 109 N.Y.S. 438.
Douglas H. Jones, Arthur L. Wackwitz and Clark Hudson for respondent.
(1) Statute requires service within ninety days after injury of written notice on municipality of intention to claim damages. Sec. 7636, R.S. 1939. (2) Filing of petition in required time is sufficient notice. Wolff v. Kansas City, 296 Mo. 95, 246 S.W. 236; Hunt v. St. Louis, 278 Mo. 213, 211 S.W. 673; 43 C.J., sec. 1963, p. 1195. Plaintiff herein gave notice by filing petition. (3) Mental or physical disability is an excuse for non-compliance with statutory notice. Plaintiff was physically and mentally incapacitated from giving statutory notice until ten days before petition was filed and summons served. Therefore, notice was given in ample time. Cole v. St. Joseph, 50 S.W.2d 623, 624; Koontz v. St. Louis, 230 Mo. App. 128, 89 S.W.2d l.c. 590; Randolph v. Springfield, 302 Mo. 33, 257 S.W. 449; Randolph v. Springfield, 275 S.W. 567. (4) Incapacity to serve notice is a question of fact for the jury. Randolph v. Springfield, 302 Mo. 33, 257 S.W. 449; Randolph v. Springfield, 275 S.W. 567. Where reasonable men may draw different inferences it is for the jury. Linderman v. Carmin, 255 Mo. 62, 164 S.W. 614; Burt v. Nichols, 264 Mo. 1, 173 S.W. 681; Lankford Estate, 272 Mo. l.c. 18; Pietzuk v. Kansas City Ry., 289 Mo. l.c. 160, 232 S.W. 987; American Packing Co. v. Milwaukee Ins. Co., 35 S.W.2d l.c. 959; Ward v. Scott, 47 S.W.2d 250. The question of total disability has been held for the jury in all insurance cases. Stoner v. N.Y. Life Ins. Co., 61 Sup. Ct. 336, approving 90 S.W.2d 784, and 114 S.W.2d 167, 232 Mo. App. 1048; Wall v. Continental Cas. Co., 111 Mo. App. 504, 86 S.W. 491; Foglesong v. Modern Brotherhood of America, 121 Mo. App. 548, 97 S.W. 240; Katz v. Union Central L.I. Co., 226 Mo. App. 618, 44 S.W.2d 250; Kane v. Met. Life Ins. Co., 228 Mo. App. 649, 73 S.W.2d 826; Rogers v. Met. Life Ins. Co., 122 S.W.2d 5; Heald v. Aetna, 340 Mo. 1143, 104 S.W.2d 379; Wright v. Met. Life Ins. Co., 115 S.W.2d 102; Comfort v. Travelers Ins. Co., 131 S.W.2d 734; Frost v. Central Bus. Men's Assn., 246 S.W. 628; Bellows v. Travelers Ins. Co., 203 S.W. 978. And where notice is provided for, but assured is unable to give notice, such requirement is waived. Roseberry v. Am. Ben. Assn., 142 Mo. App. 552, 121 S.W. 785; Hayes v. Continental Cas. Co., 72 S.W. 135, 98 Mo. App. 410. The question of reasonableness is always for the jury. Armour v. Am. Auto Ins. Co., 80 S.W.2d 685, 336 Mo. 551; Jackson v. Order of United Com. Travelers, 89 S.W. 536; Winkelmann v. Cent. State Life Ins. Co., 101 S.W.2d 736, 231 Mo. App. 501. (5) Physical pain and suffering, accompanied by continuous administration of opiates and sedatives, was such as to incapacitate plaintiff from giving written notice or procuring some one else to give it. Reasonable impossibility of procuring others to serve notice excuses failure to have it done. 6 McQuillin, Municipal Corps. (2 Ed.), sec. 2632; Koontz v. St. Louis, 230 Mo. App. 128, 89 S.W.2d l.c. 590. No duty on relatives or strangers to serve notice. Stoliker v. Boston, 204 Mass. 522, 90 N.E. l.c. 931; Randolph v. Springfield, 275 S.W. 567. Pain and suffering to be considered by jury. Randolph v. Springfield, 302 Mo. 33, 257 S.W. 449. Foreign authorities cited by our courts establish rule that the question of pain and suffering and disability is for the jury. Hartsell v. Asheville, 82 S.E. 946; Terrell v. Washington, 73 S.E. l.c. 895; Barclay v. Boston, 46 N.E. 113; Born v. Spokane, 27 Wn. 719, 68 P. 386; Ransom v. South Bend, 76 Wn. 396, 136 P. 365; Hall v. Spokane, 79 Wn. 33, 140 P. 348; Erhardt v. Seattle, 33 Wn. 664, 74 P. 827; McCullom v. So. Omaha, 84 Neb. 413, 121 N.W. 438. Appellant's authorities are not in point. Their facts are in no sense similar. Randolph v. Springfield, 275 S.W. 567; Hastings v. Foxworthy, 45 Neb. 676, 63 N.W. 955; Saunders v. Boston, 167 Mass. 595, 46 N.E. 98; Townsend v. Boston, 232 Mass. 451, 122 N.E. 395; May v. Boston, 150 Mass. 517, 23 N.E. 220; Ehrhardt v. Seattle, 40 Wn. 221, 82 P. 296; Ray v. St. Paul, 44 Minn. 340, 46 N.W. 675; Goodwin v. Fall River, 228 Mass. 529, 117 N.E. 796; Hall v. Spokane, 79 Wn. 303, 140 P. 348; Mitchell v. City of Worcester, 129 Mass. 525, 526; Lyons v. City of Cambridge, 132 Mass. 534; Harris v. City of Genoa, 195 N.W. 953, 111 Neb. 671. (6) Plaintiff's own testimony as to facts showing mental and physical incapacity was substantive evidence of disability to give notice. Appellant's cases are inapplicable and do not support its contention. Lindquist v. Kresge, 345 Mo. 849, 136 S.W.2d 303; Beitling v. Kresge, 232 Mo. App. 1195, 116 S.W.2d 522; Gore v. Whitmore Hotel Co., 229 Mo. App. 910, 83 S.W.2d 114; Clevenger v. Frisco Ry. Co., 341 Mo. 797, 109 S.W.2d 369; Baptiste v. Boatmen's Bank, 148 S.W.2d 743; Linderman v. Carmin, 255 Mo. 62, 164 S.W. 614; Siegel v. M.-K.-T. Ry. Co., 342 Mo. 1130, 119 S.W.2d l.c. 379; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d l.c. 646; Steele v. K.C. So. Ry., 265 Mo. 97, 175 S.W. l.c. 181; Am. Pack. Co. v. Milwaukee Mechs. Ins. Co., 35 S.W.2d 956; Tattershall v. Cab Co., 225 Mo. App. 611, 37 S.W.2d 659; Ensler v. Mo. Pac. Ry. Co., 324 Mo. 530, 23 S.W.2d 1034. (7) Testimony of Dr. Snyder, a medical expert, as to plaintiff's mental and physical incapacity is substantial evidence of probative force and is not a conclusion. A scientific expert may properly testify that plaintiff was in such physical pain as to preclude any possibility of thinking clearly, intelligently and rationally. Mental capacity is for the jury. Kimmie v. Terminal Railway, 334 Mo. 596, 66 S.W.2d 561; Kelly v. K.C. Bldg. Assn., 81 S.W.2d 440, 229 Mo. App. 686; Hall v. Mercantile Trust Co., 332 Mo. 802, 59 S.W.2d 664; De Donato v. Wells, 328 Mo. 448, 41 S.W.2d 184. Lay witnesses may testify to facts upon which they base their judgment that a testator is mentally incompetent. Kelly v. K.C. Bldg. Assn., 229 Mo. App. 686, 81 S.W.2d 440; Benson v. Smith, 38 S.W.2d 749; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 72; Nute v. Fry, 341 Mo. 1138, 111 S.W.2d 84; Oesterle v. Kroger Co., 141 S.W.2d 782; Phares v. Century Elec. Co., 131 S.W.2d 884; Mann v. Grimm-Smith Hospital, 147 S.W.2d 608. (8) Plaintiff was incapacitated the entire period from the time of his injury until ten days before notice was given. Therefore he was not able to write and serve a technical notice during the first moments following his injury. Appellant's cases are not in point. Harris v. Genoa, 111 Neb. 91, 195 N.W. 953; Townsend v. Boston, 232 Mass. 451, 122 N.E. 395; Green v. Port Jervis, 66 N.Y.S. l.c. 1043; Benson v. Seattle, 78 Wn. 541, 139 P. 501. (9) Plaintiff was still incapacitated from April 16, 1940, to July 17, 1940, and it was not possible for him to prepare and serve a technical written notice during that period. All authorities hold that plaintiff should be allowed a reasonable time after removal of disability. 43 C.J., sec. 1978, p. 1210; Randolph v. Springfield, 302 Mo. 33, 257 S.W. 449; Forsythe v. Oswego, 191 N.Y. 441, 84 N.E. 392; Walden v. Jamestown, 178 N.Y. 43, 70 N.E. 466; Hungerford v. Waverly, 125 A.D. 311, 109 N.Y.S. 438; Green v. Port Jervis, 55 A.D. 58, 66 N.Y.S. 1042. (10) Two weeks is a reasonable time within which to serve notice after the removal of disability. Plaintiff served notice within two weeks after the removal of his disability. Therefore the notice was good. Forsythe v. Oswego, 191 N.Y. 441, 84 N.E. 392; In re Sternberg, 300 F. 881; 6 Words Phrases, p. 577, p. 186; Glassey v. Sligo, Furnace Co., 120 Mo. App. 24, 96 S.W. 310; Smith v. Pelto Water Wheel Co., 151 Cal. 394, 90 P. 934, 935; Salmon v. Helena Box Co., 147 F. 408. (11) Plaintiff successfully carried the burden of proof as to incapacity to serve notice until it was served. Appellant's cases cited in objection thereto are not in point and have no application to the facts in the case at bar. Rogers v. Port Chester, 234 N.Y. 182, 137 N.E. 19, 20; Mitchell v. Worchester, 129 Mass. 525; Lyons v. Cambridge, 132 Mass. 534; McNulty v. Cambridge, 130 Mass. 275; Welsch v. Gardner, 133 Mass. 529, 530; May v. Boston, 150 Mass. 517, 23 N.E. 220; Forsythe v. Oswego, 84 N.E. l.c. 393; Hungerford v. Waverly, 109 N.Y.S. l.c. 440.
Action for personal injuries. Plaintiff seeks damages in the sum of $25,000. He alleged a defective condition of a sidewalk in the city, which caused him to fall, resulting in the injury. At the close of plaintiff's case, the court directed a verdict for the defendant. It did so on the theory that there was no substantial evidence tending to show such physical or mental incapacity of plaintiff as would legally excuse his failure to give defendant the ninety day written notice of a claim against the city for damages, as required by Sec. 7636, R.S. 1939. The plaintiff filed a motion for a new trial. The court sustained the motion, and defendant appealed.
On review, the only question presented is whether or not the court correctly ruled the demurrer. We have ruled that physical or mental incapacity excuses a failure to give the notice, or cause the same to be given, and that the giving of the notice within a reasonable time, not exceeding ninety days, after the removal of the incapacity, is a compliance with the statute. [Randolph v. City of Springfield, 302 Mo. 33, 257 S.W. 449; Randolph v. City of Springfield (Mo. App.), 275 S.W. 567; Cole v. City of St. Joseph, 50 S.W.2d 623; Koontz v. City of St. Louis, 230 Mo. App. 128, 89 S.W.2d 586, 590.]
Defendant contends that there was no substantial evidence tending to show incapacity within the meaning of Sec. 7636, R.S. 1939, as construed by this court. There was evidence as follows:
On February 1, 1940, plaintiff, sixty years of age, slipped and fell on a sidewalk in the City of St. Louis, which resulted in a fracture of his right hip. He was a steel worker until 1930. Thereafter he worked as a common laborer until in 1933 he suffered a fracture of the left hip, which shortened his left leg two inches. As a result he used a cane. He then farmed for a while and two years before February 1, 1940, worked as a shoe shiner in Tony Lavitcha's barber shop, one block north of where he lived.
At the time he slipped and fell on the sidewalk, he did not lose consciousness. He remembered that he was carried across the street to his upstairs home and laid on the bed. The next day, February 2, 1940, his wife called a doctor who stated that plaintiff's right hip was broken and directed that he be taken to the city hospital. He was taken to the city hospital in an ambulance accompanied by four policemen. At that time he was a "poorly nourished, poorly developed man, appearing emaciated and dehydrated." The first five weeks plaintiff was in the hospital his right leg was in a splint and elevated in an effort to prevent a shortening of the leg. The effort failed, and his leg was put in a cast extending from his armpit to his heel. The leg was encased for eight or nine weeks and until May 13, 1940, when the cast was removed. During the time his leg was in the cast and for a number of weeks thereafter, he suffered pain from numerous sores on his leg, foot and back. From the time he entered the hospital he was given codeine (an opiate narcotic) in conjunction with aspirin and luminal (both sedatives for pain) with increasing frequency until the removal of the cast. The hospital record shows that he was so treated as follows: February — 12 times; March — 28 times; April — 26 times; May — 14 times; June — 1 time. The record further shows that he developed bowel trouble, for which he was treated during the months of February, March, April and May. The record further shows that the cast was cut in several places from time to time to relieve the pain and suffering of the plaintiff. The record further shows that during the time the leg was in the cast plaintiff had difficulty in sleeping, and from time to time complained "bitterly of the pain."
On June 11, 1940, plaintiff signed out of the hospital and was taken home by his wife and a friend. For two weeks before leaving the hospital he used a wheel chair. He was dissatisfied at the hospital and left the same against the advice of his wife and the hospital physician. During his confinement in the hospital and in February, 1940, his stepson died at the hospital. [1016] At that time his wife was without funds, sick and in trouble. She had enough insurance to bury her son. Usually she visited plaintiff at the hospital once a week but sometimes not oftener than once in two weeks. On the death of the son she did not visit him for three weeks. Very few visited plaintiff. Tony Lavitcha, the barber, visited him once for a few minutes. At no time was plaintiff unconscious while in the hospital or during the time he was confined to his home as a result of the injury. He was in bed at home for three weeks after he returned from the hospital.
Plaintiff's wife testified as follows: "I visited plaintiff at the hospital sometimes twice a week — sometimes once a week — sometimes only every couple weeks; that he was in a bad condition — would not remember her previous visit; I guess he didn't know anybody to know; he didn't talk very much and didn't have much to say; didn't say really anything to me; that she had only an hour to make visit; that patients (her son and husband) were in separate divisions of hospital, and that she spent most of her time with her son." Witness explained "bad condition" by stating that "he didn't want to talk, and his exclamation `Oh, I am in such pain;' that she did not want him to come home; that he insisted on coming home; that she had seen her husband at hospital not over fifteen times during his stay there; that after he came home she doctored him herself that she was not well herself, all crippled up; sometimes, when visiting son, she would not visit husband; that lawyer was contacted July 12, 1940." Defendant was served with notice of the claim on July 17, 1940.
Dr. Snyder, a witness, interpreted a series of X-rays, a part of the City Hospital record, and testified that he had examined plaintiff and made an X-ray which showed "there is no firm union, there is some fibrous union, but no callous formation present." Describing the normal hip joint, he stated that "ligaments are leathery attachments — directly attached to the bones — they crisscross every conceivable direction — that fractures of the hip occur more readily in the aged than in younger persons — that he had examined plaintiff's fracture — that it would be accompanied by shock — that pain would be more intense at fracture site — such a fracture would affect the sciatic nerve, beginning in lower part of back and transversing the lower limb posteriorily. There are numerous nerves in and around the hip joint — they would all be affected by the unusual torsion or pull."
He further testified that "there would be permanent damage to the soft tissues — pain would be constant at all times during the healing process — going sometimes as much as three months — his fracture was nonimpacted — an impacted fracture would heal faster — because the bones are already together — such fracture would cause loss of sleep; that in treatment of such a fracture he would first of all try a sedative medicine — a sedative clams the patient, quiets the nerves; luminal and aspirin are sedatives — aspirin has analgic purposes, diminishes pain — codeine is a narcotic — absolutely deadens pain; his fracture was of an unusual type, in the vast majority of cases you do not get this result; that he examined plaintiff Nov. 6, 1940; that there isn't a healing and there wasn't up to the time I examined him."
The doctor further testified that such a fracture, the pain suffered incident thereto, with particular reference to a man's mind, "would produce such misery and anguish of mind," the individual would be in "agony" and "preclude any possibility of thinking clearly, intelligently and rationally."
We think the above stated evidence made a submissible case for the jury on the issue of physical or mental incapacity and on the question of whether or not plaintiff served the statutory notice within a reasonable time after the disappearance of the incapacity.
Defendant cites cases of other jurisdictions as follows: City of Hastings v. Foxworthy, 63 N.W. 955; Saunders v. City of Boston, 46 N.E. 98; Townsend v. City of Boston, 122 N.E. 395; Ehrhardt v. City of Seattle, 82 P. 296; May v. City of Boston, 23 N.E. 220; Ray v. St. Paul, 46 N.W. 675; Egan v. Township of Saltfleet, 29 Ont. L. Rep. 116; Goodwin v. Fall River, 117 N.E. 796; Hall v. City of Spokane, 140 P. 348; O'Connor v. City of Hamilton, 10 Out. L. Rep. 529. Those cases may be distinguished on the facts.
The judgment sustaining the motion for a new trial should be affirmed. It is so ordered. All concur.