Justia Federal District Court Opinions

See 77 S.Ct. 221.

Mr. Foster Wood, Washington, D. C., for appellant.

Mr. Milton D. Korman, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. Vernon E. West, Corp. Counsel, Chester H. Gray, Principal Asst. Corp. Counsel, and Andrew G. Conlyn, Asst. Corp. Counsel, were on the brief, for appellee.

Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER and BASTIAN, Circuit Judges, sitting en banc. (Circuit Judge BURGER took office after this case was heard and took no part in its consideration and decision.)

WASHINGTON, Circuit Judge, announced the judgment of the court and filed the following opinion, in which WILBUR K. MILLER and BASTIAN, Circuit Judges, join:

This is a damage suit against the District of Columbia, in which the central question is whether the statutory requirement as to notice of claim has been met.

Plaintiff-appellant tripped and fell, injuring his ankle, while rounding the northeast corner of Sixth and L Streets, S. E. He brought this action in the Municipal Court against the District of Columbia on the ground that the accident was caused by the District's negligent maintenance of a manhole and cover at that corner, it being alleged that because of this negligent maintenance the manhole edge and cover protruded from the ground and caused plaintiff's fall. The District moved for summary judgment on the ground that the notice requirement established by Section 12-208, D.C.Code 1951,¹ had not been complied with. During the argument of this motion, two bases of compliance were suggested to the trial court, a letter to the Corporation Counsel by appellant's attorney, and a police report. Each occurred within the statutory period, but each named a different (and incorrect) corner of the intersection at which the accident occurred.² The police report, an excerpt from which was read to the trial court by counsel for appellee, on its face is based on a statement by Stone, though perhaps Stone's statement was transmitted to the police by some third person. Despite the errors in the two reports, the District located the correct corner, witnesses to the accident, and the offending manhole within six months of the accident.³

The Municipal Court denied the District's motion for summary judgment, and, after a jury trial, appellant won a judgment. The Municipal Court of Appeals reversed. 1955, 112 A.2d 497, 499. It did so on the strength of McDonald v. District of Columbia, 1955, 95 U.S.App. D.C. 305, 221 F.2d 860, where this court held that inaccuracies in a written notice seasonably sent to the Commissioners were not cured by subsequent but still seasonable corrections conveyed to an assistant in the office of the Corporation Counsel (to whom the Commissioners had referred the original notice) and to the District's Inspector of Claims. Dismissal for failure to comply with the statute was upheld by this court on the theory that the correction should have been sent to the Commissioners themselves instead of their subordinates, although the District conceded its defense to the claim had not been prejudiced.

In the present case we permitted an appeal, and, after oral argument before a three-judge panel, set the case for rehearing en banc because the court wished to reconsider its ruling in McDonald.

We turn first to the notice by plaintiff's attorney to the Corporation Counsel. Section 1-301 of the D.C.Code (1951) says that the Corporation Counsel "shall * * * have charge and conduct of all law business of the said District, and all suits instituted by and against the government thereof." The notice required by Section 12-208 of the D.C.Code (1951) is clearly related to potential suits against the District, and as can be seen from Judge Bastian's dissent in McDonald v. District of Columbia, supra, 95 U.S.App. D.C. at pages 306-307, 221 F.2d at pages 861-862, notice to the Commissioners is normally transmitted as a matter of course to the Corporation Counsel. In our view, the opinion in McDonald misconceives the purpose of the statutory notice, which is to give the District timely information concerning a claim against it, so it may adequately prepare its defense.⁴ To insist that the notice must be addressed to the Commissioners, and to rule out as insufficient a notice addressed to their Counsel, to whom Congress has delegated the responsibility for defending the District against suit, seems to us most unreasonable. Congress could hardly have intended that failure to observe such an idle formality should cause a claimant to be denied his day in court. We think, therefore, that the McDonald case should be overruled on that point. We conclude that Section 1-301 of the Code makes notice to the Corporation Counsel, if otherwise adequate, equivalent to notice to the Commissioners for the purposes of Section 12-208.

In the instant case, we think the notice was otherwise adequate. Within two months after the accident, the District had interviewed the witnesses to the accident and taken pictures of the site. These events show that there was no prejudice to the District from plaintiff's error. It may, of course, be true that the letter from plaintiff's counsel to the Corporation Counsel bore no causal relationship to these events. But Section 12-208 of the D.C.Code (1951) contains no such requirement. A notice would, for example, suffice if given within the six months period though the District had completed preparation of its case and repaired the spot before receipt of the notice. In a case such as the instant one, in which the right site was discovered and there is no assertion that plaintiff deliberately sought to mislead the District, notice fully complies with the purpose of the statute when it pin-points the locale with sufficient accuracy so that an investigation starting from the notice could reasonably be expected to uncover the available information. Such, on the face of the record, was this case. If — despite determination of the right spot and location of the witnesses — the District wished to claim prejudice, it was up to the District to make a record on that point. Had the report filed by plaintiff's counsel merely referred to 6th and L Streets, S. E., without reference to a specific corner, we think the notice would have been beyond question. The inclusion of additional specificity — though erroneous — should not defeat the notice in the absence of a showing of prejudice.

We turn to the police report, which appellant says constitutes "sufficient notice" under the proviso appended to Section 12-208. We agree, since we find no support in the statute for applying a stricter standard to that report than we have set out above for a notice from plaintiff. It is true that in the instant case the report by the police was not based on first hand observation but on a report to the police originating with appellant. But the statute contains no requirement of observation or on-the-site investigation. It seems obvious that the reference to a police report is included because Congress did not wish to cut off a plaintiff for lack of notice when the officials of the District had received from the Police Department a report of the episode prepared "in regular course of duty." The extent of the investigation by the police should not be the measure of the plaintiff's rights. The report in this case was adequate for purposes of the proviso.

Judges EDGERTON and FAHY agree that we should reverse the judgment of the Municipal Court of Appeals. Accordingly the judgment is reversed.

Judges EDGERTON and BAZELON agree that so far as McDonald holds that notice must be sent directly to the Commissioners and that an otherwise adequate notice addressed to the Corporation Counsel is not sufficient, McDonald is erroneous. On that point McDonald is overruled.

So ordered.

BAZELON, Circuit Judge, is of the view that the appeal should be dismissed as having been improvidently granted, for the following reasons:

We granted Stone's petition for allowance of an appeal in order to review the effect of our decision in McDonald. After the appeal was heard by a panel of this court, a rehearing in banc was ordered, sua sponte, because a majority of this court thought reconsideration of McDonald desirable and that this case presented questions appropriate for that purpose. But I now think, upon further study after the rehearing, that the record before us is unsatisfactory for that purpose.

The complaint alleged that "plaintiff notified the Commissioners of the District of Columbia in writing" within six months after the accident. All that appears in the record concerning such notice is the following stipulation in an amended pre-trial order:

"The District of Columbia received a letter from Foster Wood, attorney for plaintiff, addressed to the `Corporation Council' under date of April 30, 1953, setting forth that the plaintiff was injured April 15, at the northwest corner of sixth and L Streets southeast." [Emphasis supplied.]

The evidence at the trial disclosed that the accident occurred on the northeast, rather than the northwest corner of the intersection. There was no evidence that appellant corrected the discrepancy within the six months' period, either orally or in writing.

It is true that at the trial, which was held long after the six months' period expired, a District investigator identified a photograph he had taken at the northeast corner about six weeks after the accident. But the record does not make clear that the District authorities were aware, when the photograph was taken, or at any time within the six months' period, that the photograph showed the correct corner. Consequently we have no assurance that the District was not prejudiced or hampered in handling and defending against Stone's claim, so that it might be said that the mistake in the original notice was cured.1 It cannot be concluded from this record, therefore, that the District had, either from Stone or from other sources, the notice prescribed by the statute.

Thus, in my view, we do not reach the question whether the statutory requirement for "written notice to the Commissioners of the District of Columbia" is satisfied by a letter sent to the Corporation Counsel. But since a majority of the court has decided to reverse the judgment of the Municipal Court of Appeals and three judges are announcing an opinion that deals with the question just stated, I think I should express my view regarding it. Cf. Mr. Justice Frankfurter's separate opinion in Armstrong v. Armstrong, 1956, 350 U.S. 568, 572, 76 S.Ct. 629. So far as McDonald holds that notice must be sent directly to the Commissioners, and that an otherwise adequate notice addressed to the Corporation Counsel is not sufficient, I think McDonald is erroneous. I am in agreement, to that extent, with Judge WASHINGTON'S opinion in this case.

As to the police report, it was not referred to in the complaint and there is no evidence concerning it in the record. The existence of such a report and a fragmentary excerpt therefrom were merely referred to by the parties in oral argument before the trial court. The excerpt indicates that the report also included a wrong corner of Sixth and L Streets, as the place of accident.2 Even if we implied from these references that the parties stipulated to the existence of such a report describing the wrong corner of the intersection, the record would still be inadequate for our purposes.

The proviso directs that a police report "shall be regarded as sufficient notice." It does not expressly incorporate the requirements of the statute's forepart for information concerning the "time, place, cause and circumstances" of the accident. At first blush, it would seem to follow that the mere existence of a police report establishes notice, without regard to its scope, accuracy and source of information, or the circumstances surrounding its preparation. But I think this plainly inconsistent with the statute's purpose of assuring adequate information for the proper and efficient disposition of claims by the District. Congress undoubtedly assumed that such information would be found in a report by trained police personnel. But clearly this assumption cannot be extended to a report which, for an extreme example, merely reflects an inaccurate oral description relayed by the claimant to the police five months after the accident. Hence we cannot determine whether the report is one that falls within the reasonable contemplation of the statute's proviso, without at least knowledge of the full report. No such report is before us in the present case.

Since the record is inadequate for the purpose for which we granted this petition for allowance of an appeal and thereafter ordered a rehearing in banc, the appeal should have been dismissed as having been improvidently granted.

DANAHER, Circuit Judge (dissenting).

Judge BAZELON has demonstrated that the record is barren of proof of the notice contemplated by the statute. He might have added that due to a geographical anomaly caused by playgrounds and off-set intersections, there are no less than six different locations which answered to the description, "corner of sixth and L Streets southeast" as the situs of the alleged defect. I agree otherwise with his observations except that I dissociate myself from the suggestion that the McDonald case was incorrectly decided. I think the McDonald result is commanded by the statute, and there are real reasons why that is so.

First is the need to protect against false or unjustified claims, for unfortunately, there are some claimants who are strangers to the truth where a dollar is involved. So, Congress requires that the notice shall supply information as to the "approximate time, place, cause and circumstances" of the alleged injury. Next, as Congress says, the prescribed timely notice shall be given to the Commissioners even as to valid claims, for the District is entitled to a reasonable opportunity to prepare a proper defense to all claims, valid or invalid. The courts shall not be open to a non-complying claimant unless the required information, in writing, shall be supplied in behalf of the claimant or by the police "in regular course of duty." Under the circumstances, the statutory notice is by no means an "idle formality," as I read the Code and understand its purpose.

If Circuit Judge WASHINGTON'S opinion is correct, it makes no difference whether the notice be given to the Highway Department,* or any other department, so long as the "District" or unnamed "officials of the District" learn, somehow, of the claim and the location of the area where a defect is said to exist. Circuit Judge Washington's opinion says that so long as the District can prepare its defense, it is "most unreasonable" to require a sufficient notice. Such reasoning would sustain any claim, whether in writing or not, no matter what the source of the District's information, no matter who in the District gets the information, no matter when the suit is brought. Such is the end result of the logic employed. I do not understand it to be our function to fix policy and to say what is "reasonable," be it more or less reasonable.

Congress has clearly and expressly spoken otherwise. The matter of an opportunity to prepare a defense is only part of the statutory scheme. Of course Congress knows that the District has a Corporation Counsel who defends lawsuits, but Congress did not authorize the filing of the prescribed notices with the Corporation Counsel. The Commissioners are the government of the District of Columbia. Congressional appropriations for the maintenance of the District are to be expended under the eye of the Commissioners. When notices are filed or police reports are submitted as the law requires, the Commissioners become charged with knowledge of the information so supplied. Since Congress has seen fit to hold the Commissioners responsible, notice to them has been required that they, in turn, may perform their proper function of supervising, or of inquiring into, the work performance of those lesser officials whose duty it is to keep in reasonably safe condition those areas of the District which the latter should maintain.

The McDonald rule may seem harsh when its effect has been to deny relief where some District officials from some source, have had actual knowledge of the location of the defect complained of and have not been misled by an inadequate or incorrectly directed claim. It seems to me that Congress might be asked to relax the rigors of its present statute by providing that where the District has actual and timely notice of the circumstances out of which the claim arose and is sufficiently informed to prepare its proper defense, no more need be demanded.

But, in my view, it does not lie properly within the power of the court to impose less burdensome conditions to be met than Congress has deemed should be met. The Congress has not said that the District may be liable for an injury if it has actual knowledge of the time, place and circumstances, regardless of the form of notice or where the claim is filed, or how the District may have acquired such knowledge. Since Congress has not said that much, the court should not say so. Does any one suggest that it is for us to say that the notice of claim may be filed in 24 months instead of the six months limited by the statute, or that claims for injuries due to snow and ice should realistically be filed within 10 days instead of six months?

We need not cite statutes in other jurisdictions where statutory notice requirements have been relaxed when actual notice is shown. I mention one, however, where the legislature, when confronted with the problem, amended its notice statute by adding the following:

"No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury, or in stating the time, place or cause of its occurrence if it shall appear that there was no intention to mislead or that such [municipal corporation] * * * was not in fact misled thereby."1

It is not to be doubted that Congress will in the light of hardship cases consider the problem if brought to its notice. It might also think it wise to amend further to permit a special period, say of one year, within which in instances where it can be shown the District had actual knowledge, any action which accidentally failed to survive the McDonald case, might be revived and reopened, or might be brought if not previously commenced because of the McDonald ruling.

I have respectfully submitted the foregoing since such amendments will more nearly achieve complete justice than is possible under the statute as presently written. Rather than the court, I think Congress should pronounce the rule under which a remedy may be sought where the District's liability is limited by a section of our Code.