#### EDITH H. PERRY, Guardian for WILLIAM S. PERRY et al., and EDITH H. PERRY, Individually, v. CITY OF HIGH POINT.

(Filed 20 December, 1940.)

1. Municipal Corporations § 46—

Where a municipality contends that no notice of claim against it bad been given its city council as required by its charter as a condition precedent to the right to maintain an action on the claim, testimony that after delivery of claim to its city manager, the mayor and two members of the council had visited the *locus in quo*and discussed the claim, is competent as tending to show that they had been given notice.

2. Same — Evidence that notice of claim addressed to city council was filed in office of manager and that councilmen had notice, held sufficient.

Evidence that notice of claim against defendant municipality, sufficient in form and addressed to the city council, was filed in the office of the city manager, that subsequently at a meeting of the city council, consideration of the claim was denied because it had not been given the city council as required by the charter (sec. 2, ch. 171, Private Laws of 1931), and that subsequent to the filing of the notice the mayor and two city councilmen visited the *locus in quo*and discussed the claim, *is held*sufficient evidence to be submitted to the jury on the question of substantial compliance with the charter provisions requiring notice to be given the city council, and the granting of the city’s motion to dismiss is error. *Nevins v. Lexington,*212 N. C., 616, cited and distinguished.

*3.*Same—

The provisions of a city charter that notice of a claim against the city be given as a condition precedent to the right to maintain an action on the claim, is in derogation of the common law, and a substantial compliance is sufficient.

Appeal by plaintiffs from *Sinclair, Emergency Judge,*at September Term, 1940, of Guileobd.

Tbis is an action to recover damage to tbe land of tbe plaintiffs alleged *to have been*caused by defendant emptying raw sewage into a stream wbicb flows by said land, thereby depreciating tbe value thereof. Tbe plaintiffs alleged, *inter alia,*that they bad served tbe defendant with written notice of their claim and made demand in writing that same be paid, as by law required, and that tbe defendant bad not paid tbe damage claimed and demanded. Tbe defendant denied tbis allegation.

*715The court entered upon the trial of the plea in bar or the issue raised on the pleadings as to whether the plaintiffs had complied with the requirement of the charter of the city of High Point as a condition precedent to the maintenance of the action.

After counsel for the plaintiffs .announced that they had offered all of the evidence they had as to notice to the City Council, the court allowed the motion of the defendant to dismiss the action, and signed judgment accordingly. To this judgment the plaintiffs preserved exception and appealed.

*Frazier & Frazier, J. Keith Harrison, and D. H. Parsons for plaintiffs, appellants.*

*G. II. J ones for defendant, appellee.*

Schencic, J.

The sole question presented on this appeal is: "Was there sufficient evidence to be submitted to the jury upon an issue as to whether the plaintiffs had substantially complied with the requirement of the charter of the city of High Point relative to giving notice to the City Council as a condition precedent to the institution of the action?

The pertinent portion of the charter of the city of High Point (sec. 2, ch. 171, Private Laws 1931) reads: “Section Six. No action against the city of High Point of any character whatsoever for damages to either person or property shall be instituted against the said city unless the complainant, his attorney or personal representative, shall have given notice to the City Council of the city of High Point of such injury, in writing, within six months after the occurrence of the cause of complaint, stating in such notice the date and place of happening or infliction of said injury, the manner of such infliction or character of injury and the amount of damage claimed therefor.”

On 15 September, 1936, the plaintiffs delivered to E. M. Knox, city manager of the city of High Point, notice in the following words:

> “NORTH CAROLINA In THE OlTY OF HlGH POINT

> Guilford County Before the Council.

> “Edith H. Perry, Guardian for William S. *\*Perry, Margaret C. Perry and John C. 0. / Perry, and Edith H. Perry, > NOTICE OF CLAIM v. I City of High Point. J

> *"To the Mayor and Council of the City of High Point:*

> “The hereinabove named claimants hereby give notice to the City Council of the City of High Point of their claim for damages to the *716property of tbe claimants located on Lexington Avenue in tbe City of Higb Point at tbe intersection of Lexington Avenue and Wiltshire Boulevard on tbe northwest corner, tbe home place of claimants, by reason and for and on account of tbe City of Higb Point emptying sewage and other offensive substances and odors on tbe said lands of claimants from 15th day of March, 1936, until tbe present, thereby causing damages to tbe aforesaid claimants and their said lands, as said claimants allege and demand payment therefor in tbe amount of $10,000.00.

> “This tbe 15th day of September, 1936.

> J. Keith Harrison

> D. H. PaRsohs

> *Attorneys for Edith II.*Perry,

> *Guardian for William S. Perry,*

> *Margaret C. Perry and John O. O.*

> *Perry; and Edith H. Perry.”*

On a copy of such notice tbe said Knox made endorsement in tbe following words :

> “This is a copy, tbe original of which was filed in tbe office of tbe City Manager on this tbe 15th day of September, 1936.

> E. M. Knox,

> *City Manager of the Gity of High Point.”*

Tbe defendant admits in tbe record that tbe above notice was presented to tbe City Manager, but not tbe City Council.

Tbe plaintiffs then offered to prove by tbe witness Henry D. Perry, father of tbe infant plaintiffs, that after tbe notice was delivered to Knox, tbe City Manager, at least two members of tbe City Council and tbe Mayor visited tbe land involved in this action and expressed tbe opinion that tbe claim was correct and that tbe trouble should be corrected. Defendant’s objection to this evidence was sustained and exception preserved by plaintiffs. We are of tbe opinion, and so bold, this exception is well taken, since tbe evidence tended to show that tbe Mayor and two members of tbe City Council bad been given notice of tbe claim.

Tbe plaintiffs introduced excerpt from tbe minutes of a meeting of tbe City Council held on 16 September, 1936, reading as follows:

> “Upon call of tbe roll, Mayor Grayson, Councilmen Briggs, Gurley, Lewis, Sechrest and Ward were present. . . . City Manager Knox stated that be understood that Sunset Dairies, Incorporated, Edith H. Perry and Edith H. Perry, Guardian, were claiming damages. Councilman Briggs stated that be understood no Notice of Claim for damages *717bad been served on or presented to tbe members of tbe City Council, as required by tbe City Charter; therefore, tbe Council refused to recognize or consider tbe said claims.”

Tbe notice filed with tbe City Manager and addressed “To tbe Mayor and Council of tbe City of High Point,” was sufficient in form to meet tbe requirements of tbe statute, which leaves for decision only tbe question whether tbe delivery thereof to tbe City Manager, and the evidence that subsequently tbe City Manager at a meeting of tbe City Council stated that be understood tbe plaintiffs were claiming damage, and tbe Council refused to recognize or consider tbe claim for tbe reason that no notice of claim bad been given tbe City Council as required by tbe charter, and tbe further evidence that subsequent to tbe delivery of tbe notice of claim to tbe City Manager tbe Mayor and two members of tbe City Council visited tbe *locus in quo*and expressed an opinion that tbe claim was just and tbe trouble should be corrected, was sufficient evidence to be submitted to tbe jury upon an issue addressed to tbe giving of tbe notice required by tbe municipal charter to tbe City Council. "We are of tbe opinion, and so bold, that such evidence was so sufficient.

This Court has held that statutory provisions that written notice be given to City Councils or Boards of Aldermen of cities or towns as a condition precedent to tbe institution of certain actions against such cities and towns require only a substantial compliance, without tbe technical nicety necessary to pleadings, since tbe provisions are in derogation of tbe common law. *Graham v. Charlotte,*186 N. C., 649; *Ivester v. Winston-Salem,*215 N. C., 1.

> “Such statutory requirements being for tbe benefit of tbe municipality in order to put its officers in' possession of tbe facts upon which tbe claim for damages is predicated and tbe place where tbe injuries are alleged to have occurred, in order that they may investigate them and adjust tbe claim without tbe expense of litigation, a reasonable or substantial compliance with tbe terms of tbe statute is all that is required; and where an effort to comply with such requirements has been made and tbe notice, statement, or presentation when reasonably construed is such as to accomplish tbe object of tbe statute, it should be regarded as sufficient.” 43 O. J., p. 1192, par. 1962.

> “Where tbe board or committee is not in session at tbe time of service, it is sufficient to direct tbe notice to tbe council or other governing body, and then deliver it to tbe officer having tbe care and custody of tbe records and files of such body, within tbe time fixed by statute. *Kelly v. Minneapolis,*77 Minn., 76, 79 N. W., 653.” 43 C. J., note p. 1206.

> “Delivery of notice in tbe City Clerk’s office, to an assistant clerk, in tbe absence of tbe Clerk, is properly served. *McCabe v. Cambridge,*134 Mass., 484; *Kelly v. Minneapolis,*77 Minn., 76, 79 N. W., 653.” 43 C. J., note p. 1207.

*718This case is distinguishable from Nevins *v. Lexington,*212 N. C., 616, in that in the *Nevins case, supra,,*the notice was directed to the city manager instead of the proper municipal authorities and there was no-allegation that any notice to anyone other than the city manager was intended or attempted. Also the decision in the *Nevins case, supra,*was predicated upon C. S., 1330, which applies only to cases arising out of contract, *Shields v. Durham,*118 N. C., 450; *Sheldon v. Asheville,*110 N. C., 606, whereas this action involves an interpretation of the provision in the charter of the city of High Point (Private Laws 1931, *supra),*which applies to actions “of any character whatsoever for damages.”

The judgment of the Superior Court is

Beversed.