J. Reid TILLMAN, Appellant, v. CITY OF POMPANO BEACH, a municipal corporation, Appellee, 100 So. 2d 53

HOBSON, Justice. This appeal arises from the action of the court in striking certain allegations of a pleading which had been filed by appellant, plaintiff below. The action had been commenced by appellant against the city and its truck driver, to recover damages for injuries sustained by appellant when a city-owned truck collided with the rear of appellant’s automobile. The city contended below that appellant was barred from prosecuting his claim by virtue of provisions of the city charter [Secs. 1 and 2, Art. 7,

Part XII, Chap. 24835, Special Acts of 1947] to the effect that no suit of this nature should be maintained against the city “unless it shall be made to appear that written notice of such damage was, within thirty (30) days after the receiving of the injury alleged, given to the City Commission or the City Manager, with such reasonable specifications as to time, and place and witnesses as would enable the proper City officials to investigate the matter * * * ” (Emphasis supplied.) In the pleading with which we are concerned, appellant alleged that at the time of the accident the city -manager and a member of the city commission were in the immedite vicinity.

These officials promptly visited the scene, interrogated the appellant, and made a full and complete investigation of the collision on the spot. Appellant further alleged that on the day following the accident he 'reported the accident and his injuries and damages to an agent of the city, that such agent assured appellant the city was covered by insurance and that the accident had been or would be promptly and properly reported to the city and its insurance carrier.

Appellant went on to allege in substance that various representatives of the city, including the city manager, discussed the accident and appellant’s injuries with him on numerous occasions within thirty days following the accident, conceding the liability of the city and discussing only the amount of the payment due appellant. Relying upon the representations made by the city through its agents, appellant was led to believe, so he alleges, that no further action on his part was necessary, and he therefore remained inactive until the time specified in the city charter had run.

Two unusual features of this case are immediately apparent: first, the very city officials to whom the statutory notice was to be given had immediate actual notice of the accident and conducted an investigation of it; and second, the city, through its agents, actively represented that the city was liable, leaving open only the question of damages, which was to be settled when the amount was finally determined.

In other words, the basic representation made to appellant was that the matter would not proceed to the litigation stage, and it was with this assurance that appellant delayed obtaining representation by counsel until after the time for filing written notice had run. Both sections of the city charter here involved contemplate the giving of written notice only as a condition precedent to commencing litigation, as the use of the words “suit” and “cause of action” in the statute indicate.

According to the stricken allegations, however, the city officials said in effect that they would render litigation unnecessary by settling appellant’s claim, but later, after the time for performing the technical condition precedent to filing suit had run, they refused to fulfill their earlier promises, making it necessary for appellant to seek his remedies at law. Appellant could not have told the city officials in writing anything he did not tell them verbally or that they did not already know by virtue of their own investigation of the accident.

We conclude that under the peculiar facts of this case the appellee was estopped to insist upon the requirement of written notice as a condition precedent to filing suit. We have held that in a proper case the doctrine of estoppel may be applied against the interest of an entity of government. See Daniell v. Sherrill, Fla., 48 So.2d 736, 23 A.L.R.2d 1410; Florida Livestock Board v. Gladden, Fla., 76 So.2d 291; Trustees of Internal Improvement Fund v. Bass, Fla., 67 So.2d 433; Booth v. Board of Public Instruction, Dade County, Fla., 67 So.2d 690. In Daniell v.

Sherrill, supra, we cited with approval the case of Farrell v. Placer County, 23 Cal.2d 624, 14S P.2d 570, 153 A.L.R. 323, wherein it was held on facts very similar to those of the case at bar that the defendants, two counties in California, were estopped to raise the running of the the statutory notice period as a defense. There the plaintiff had relied upon representations that it would be satisfactory if" she waited until the extent of her injuries were known before she stated the amount claimed or made a settlement. Similar cases so holding are Bubb v. City Sunbury, 37 Pa.D. & C.R. 399, and Badger v.

Upper Darby Twp., 348 Pa. 551, 36 A.2d 507. See also City of Waco v. Thralls, Tex.Civ.App., 172 S.W.2d 142, and City of Lubbock, Texas v. Green, 5 Cir., 201 F.2d 146. We have frequently expressed our views regarding the purpose of municipal charter provisions requiring notice to the city within a time certain. See Olivier v. City of St. Petersburg, Fla., 65 So.2d 71, and Buck v. City of Hallendale, Fla., 85 So.2d 825. There can be no doubt that the actual notice which was had by the city officials in the instant case fulfilled the purpose of the charter provisions.

When the city manager and a member of the city commission, directly after the accident occurred, made an investigation thereof, the city was then on an equal footing with appellant and had an opportunity to investigate the matter in detail in order to determine whether a settlement was indicated and prepare the city’s case for a trial if necessary. We are not unmindful that the result which we have reached is inconsistent with the position taken by the courts of several other states. See the cases collected in annotations at 153 A.L.R. 329 and 82 A.L.R. 749.

In this connection we can say only that under the peculiar facts of this case, where it is alleged that city officials, who had actual knowledge of all the facts which a notice required by the charter provision would have disclosed, won the confidence of a bona fide claimant, causing him, by their affirmative acts and assurances, to defer seeking his remedies at law, the requirements of fair play compel us to hold that the city may not now be heard to say that the claimant is barred from adjudication of his rights. Reversed and remanded. TERRELL, C. J., and ROBERTS and O’CONNELL, JJ., concur.

THOMAS, DREW and THORNAL, JJ., dissent.