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District Court of Appeal, Second District, Division 2, California.


Civ. 12815

Decided: March 17, 1941

Porter C. Blackburn, of Los Angeles, for appellant. Ray L. Chesebro, City Atty., Frederick Von Schrader, Asst. City Atty., Norman Brand, Deputy City Atty., and Louis A. Babior, Deputy City Atty., all of Los Angeles, for respondent.

Plaintiff has appealed from a judgment of dismissal entered in her action to recover damages for personal injuries alleged to have resulted from the defective condition of a sidewalk under the control of the defendant city.

Plaintiff suffered her injuries on September 14, 1938, when she slipped on some mud or other slippery substance which was covered with leaves or debris. She seeks to recover damages under the provisions of the Public Liability Act of 1923. Deering's Gen.Laws, Act 5619. The complaint contains the allegations usual in such actions and in particular it is alleged that the accident occurred on the sidewalk at the corner of Union drive and Sixth street in the city of Los Angeles and that plaintiff had regularly filed her claim for damages with the defendant city. In its answer defendant denies all of the material allegations of the complaint. Upon the issue as to the regularity of the claim filed with defendant plaintiff proved that on November 9, 1938, the following verified claim for damages was filed with defendant: “To Mrs. Mary E. Hall Address c/o Porter C. Blackburn 1314 Washington Bldg., Los Angeles Sept. 14, 1938 Personal injuries received from slipping on sidewalk which was covered with mud, leaves and debris, resulting in injury and fracture to spinal column: Damages: Medical Expenses 500 Permanent Injury 5000 Loss of Earnings 2500—$8000.00”.

Defendant objected to the introduction of any further evidence on behalf of plaintiff on the ground that the foregoing claim failed to state the place where the accident happened and therefore did not comply with the provisions of the 1931 statute, Deering's Gen.Laws, Act 5149, relating to claims for personal injuries against municipalities. Prior to a ruling by the court on such objection plaintiff offered in evidence the following letter which she had received from the city clerk of defendant city about two weeks before the present action was commenced: “Greetings: At the meeting of the Council held this day, the following report of the Finance Committee, was adopted: ‘In the matter of the claim of Mary E. Hall, in the amount of $8,000.00, for damages because of personal injuries alleged to have been received when she slipped on a muddy sidewalk at the corner of Union Drive and Sixth Street, on September 14, 1938: The City Attorney reports that after making a complete investigation of this matter, he is of the opinion that there is no municipal liability involved, and recommends that the claim be denied. We recommend in view of the City Attorney's report that said claim be denied and the matter filed.’ ” The court sustained defendant's objection and thereafter entered the judgment of dismissal from which the appeal is taken.

We are called upon to decide whether or not the claim filed by plaintiff sufficiently complies with the provisions of Deering's General Laws, Act 5149, to enable her to maintain this action. Section 1 of this act provides: “Whenever it is claimed that any person has been injured or any property damaged as a result of the dangerous or defective condition of any public street, highway, building, park, grounds, works or property, a verified claim for damages shall be presented in writing and filed with the clerk or secretary of the legislative body of the municipality, county, city and county, or school district, as the case may be, within ninety days after such accident has occurred. Such claim shall specify the name and address of the claimant, the date and place of the accident and the extent of the injuries or damages received.” Defendant contends that the failure of plaintiff to specify the place of the accident in the claim is fatal to her right to maintain the present action.

Compliance with the statute referred to is mandatory and there must be at least a substantial compliance with its provisions before a suit for damages for personal injuries resulting from a defective sidewalk or street may be maintained against the city. Cooper v. County of Butte, 17 Cal.App.2d 43, 61 P.2d 516; Sandstoe v. Atchison, T. & S.F. Ry. Co., 28 Cal.App.2d 215, 82 P.2d 216.

It is contended by plaintiff that the notice in question substantially complied with the requirements of the act and that since the city officials actually investigated and discovered the place where the accident occurred, the city was not misled by her failure to designate the place of the accident in the claim. In support of this proposition plaintiff relies principally upon Sandstoe v. Atchison, T. & S.F. Ry. Co., supra, and Kelso v. Board of Education, 42 Cal.App.2d 415, 109 P.2d 29. In the Sandstoe case this court held that a claim (apparently complete and regular on its face) which was filed in duplicate with the city controller and the city clerk at the same time substantially complied with the requirement of the city charter that the claim must be filed with the legislative body within 30 days after rejection by the city controller. The claim under consideration in the Kelso case met the statutory requirements in all respects except that it was verified by plaintiff's father instead of by the minor plaintiff and it was held that a substantial compliance with the requirements of the statute had been made. It will be noted that in each of these cases the legal requirements relating to the manner in which the claim must be presented and the form thereof were complied with, although defectively in one respect. In the present case there is an entire failure on the part of plaintiff to comply with the important mandate of the statute which requires the place of the accident to be specified in the claim.

The doctrine of substantial compliance is not applicable to the present situation, which is governed by the principles enunciated in Cooper v. County of Butte, supra, and Spencer v. City of Calipatria, 9 Cal.App.2d 267, 49 P.2d 320. In each of these cases it was held that the filing of an unverified claim is not a substantial compliance with the requirements of the statute. The failure to state the place of the accident is as serious a defect as is the failure to verify the claim. Indeed no part of the claim can be of more importance to the city officials than that part which gives them information to enable them to locate the point where the alleged accident occurred and to make proper investigation of the condition of the premises. In a number of jurisdictions it has been held that a claim is fatally defective if it fails to designate the place of the accident in such manner as to enable the officials to locate it. Atkinson v. City of Indianapolis, 101 Ind.App. 620, 199 N.E. 157; Cronin v. City of Boston, 135 Mass. 110; Village of Dawson v. Estrop, 243 Ill.App. 552; Benson v. City of Madison, 101 Wis. 312, 77 N.W. 161; Reichert v. City of Chicago, 169 Ill.App. 493, and Purdy v. City of New York, 193 N.Y. 521, 86 N.E. 560, 561.

[3] We must therefore hold that the entire failure to designate in the claim the place where the accident occurred constituted such a failure to comply with the statutory requirements as to preclude plaintiff from maintaining the present action.

Plaintiff's contention that defendant by investigating and rejecting the claim waived any defects therein cannot be sustained. In the Spencer case, supra, an unverified claim was filed with the city and after investigation the city made an offer of compromise which plaintiff rejected. At no time did the city object to the defective form of plaintiff's claim. In holding that the city was not estopped to assert the defense of failure to comply with the statutory requirements relative to the claim the court observed that the city was powerless to waive compliance with the statutory provisions. The holding of the Spencer case was expressly approved by the Supreme Court in Douglass v. City of Los Angeles, 5 Cal.2d 123, 53 P.2d 353, and was declared to be the law in all cases coming within its purview. Since the city is powerless to waive a compliance with the statute, actual knowledge on the part of the city officials of the facts required to be stated in the claim does not dispense with the filing of a proper claim. Kline v. San Francisco Unified School District, Cal.App., 104 P.2d 661.

Plaintiff's final contention is that defendant is estopped to raise the defense of the insufficiency of the claim because of its failure to specially plead such defense in the answer. This proposition must be rejected for the question as to the sufficiency of plaintiff's claim was placed in issue by defendant's general denial of plaintiff's allegation that she had filed her claim with the city. Since the statutory requirements are mandatory and compliance therewith is a prerequisite to the maintenance of a suit for the damages claimed (Cooper v. County of Butte, supra, and Sandstoe v. Atchison, T. & S.F. Ry. Co., supra), the burden of proof of such compliance was on plaintiff. Since plaintiff failed to sustain this burden the court properly entered the judgment of dismissal.

The judgment is affirmed.

I concur.

It is earnestly contended that, because plaintiff was advised by the City Clerk that the Council had by resolution rejected her claim “after making a complete investigation”, she should prevail notwithstanding the requirement of the statute to the effect that the “claim shall specify the date and place of the accident”. In support of that contention, plaintiff cites numerous extra-California authorities. The reasoning of those decisions is interesting and intriguing. They appeal to one's sense of justice and fair dealing because we are accustomed to consider the application of the doctrines of equity and the principles of humanity in our treatment of one individual or corporation as against another. But in actions against a sovereignty or against any arm of it, we are met with the silent force not present in litigation among private parties, namely, the immunity of the sovereignty from tort actions save where they have been specifically authorized. When they are allowed, the permissive statute lays down the procedure which must be followed. It is a familiar rule that in making demands upon a municipality, pursuant to a statute which authorizes legal action on account of the defective condition of public places or property, compliance with the statute to the extent of including each item specified in the requirements is essential to the maintenance of an action. Officers of a municipality cannot by express writing waive these requirements. Osburn v. Stone, 170 Cal. 480, 150 P. 367. Though the city council had witnessed the accident of plaintiff and conveyed her from the scene, they would have been powerless to forego the inclusion in her demand of the date and place of the accident. If such omission be allowed in one case, the precedent will be followed in other cases.

The authorities cited to the effect that “substantial compliance with the statute is sufficient” in no case say that the omission of one of the particulars required by the statute in the statement of the claim will be condoned. The leading case cited by appellant (Bowles v. City of Richmond, 147 Va. 720, 129 S.E. 489, 133 S.E. 593) in support of her contention, held that the verification of the claim was not sacrosanct in view of the fact that the city investigated the claim and determined that it was not liable. But even in that case, the Virginia court of appeal said: “had the notice wholly failed to state where the accident occurred that omission could not be so remedied”. The rule declared by the Virginia court seems to have been generally followed in those instances where the legislative body of the city investigated an unverified claim and later rejected it. Hunter v. Village of Durand, 137 Mich. 53, 100 N.W. 191; Bowman v. Ogden City, 33 Utah 196, 93 P. 561; Lindley v. City of Detroit, 131 Mich. 8, 90 N.W. 665. In the case of Greenberg v. City of Waterbury, 117 Conn. 67, 167 A. 83, it was held that although the description of the place in the notice of claim is indefinite, it is a sufficient compliance if the city was not, because of the inaccuracy, prevented from protecting itself. It has long been the rule in this state that statutory or charter provisions, specifying particular requirements to be inserted in a claim against a municipality, must be strictly complied with. Spencer v. City of Calipatria, 9 Cal.App.2d 267, 268, 49 P.2d 320; Crescent Wharf & Warehouse Co. v. Los Angeles, 207 Cal. 430, 278 P. 1028; Western Salt Co. v. City of San Diego, 181 Cal. 696, 186 P. 345; Thompson v. County of Los Angeles, 140 Cal.App. 73, 78, 35 P.2d 185; Myers v. Hopland U.E. School District, 6 Cal.App.2d 590, 44 P.2d 654; Cooper v. County of Butte, 17 Cal.App.2d 43, 61 P.2d 516.

The rule with respect to substantial compliance urged by appellant may be stated as follows: Where an attempt is made to include within a claim for damages against a municipality all of the facts required specifically by the statute, some imperfection in the statement of any particular will not invalidate the claim. However, the rule established by the courts of this state seems to be that where there is a total failure to include one of the specified requirements, the defect in the form and content of the claim is fatal.

I dissent:

There are two rules supported by respectable authority which in my view are controlling in the present case.

First: Substantial compliance with the requirements of section 1 of Act 5149, Deering's General Laws (1937), is sufficient to permit an injured person to maintain an action against a municipality. (Kelso v. Board of Education, 42 Cal.App.2d 415, 109 P.2d 29; Sandstoe v. Atchison, T. & S.F. Ry. Co., 28 Cal.App.2d 215, 220, 82 P.2d 216.)

Second: When a claim has been filed with a municipality, full investigation made thereof and the claim rejected for some reason not connected with the form of notice or its contents, the notice has performed its function and defects therein can no longer be relied upon to prevent a recovery. (Bowles v. City of Richmond, 147 Va. 720, 129 S.E. 489, 133 S.E. 593, 595; Bowman v. Ogden City, 33 Utah 196, 93 P. 561, 564; Nevala v. City of Ironwood, 232 Mich. 316, 205 N.W. 93, 94, 50 A.L.R. 1189; Greenberg v. City of Waterbury, 117 Conn. 67, 167 A. 83, 84; Lindley v. City of Detroit, 131 Mich. 8, 90 N.W. 665; Hunter v. Village of Durand, 137 Mich. 53, 100 N.W. 191, 192.)

Applying the foregoing rules to the facts of the present case, we find, as stated by this court in Sandstoe v. Atchison, T. & S.F. Ry. Co., supra, 28 Cal.App.2d at page 223, 82 P.2d at page 221, that “the purpose of filing a claim against the city is to enable city officials to make proper investigation concerning the merits of the claim and to settle it without the expense of a lawsuit if settlement should be shown to be proper”. That such is the purpose underlying the requirement is clear. (Uttley v. City of Santa Ana, 136 Cal.App. 23, 28 P.2d 377; Wagner v. City of Seattle, 84 Wash. 275, 146 P. 621, Ann.Cas.1916E, 720.)

From the statements contained in the letter in the present case from respondent's clerk notifying plaintiff of denial of her claim, it is apparent that respondent was not misled by failure of the claim to specify the place where the accident took place. The letter describes the precise place where the accident occurred and refers to a “complete investigation” of the matter by the city attorney. The purpose of the statute in requiring the filing of a claim was therefore in fact accomplished although the claim itself was defective. There is no evidence of any intention on the part of plaintiff to mislead defendant by filing a defective claim. So far as the record discloses, plaintiff filed such claim in a bona fide attempt to comply with the statutory requirements. Under such circumstances where, as here, there is no evidence that such claim did in fact mislead the municipality, it will be deemed sufficient to enable plaintiff to maintain an action against the city following the rejection of such claim. (Kelso v. Board of Education, supra; Sandstoe v. Atchison, T. & S.F. Ry. Co., supra.)

The principle underlying the rule is well stated in Decker v. City of Seattle, 80 Wash. 137, 141 P. 338, 339, at page 339, where it is said (quoting from Hammock v. Tacoma, 40 Wash. 539, 82 P. 893):

“* where there has been a bona fide effort to comply with the statute, and there has been no intention to mislead, it is a sound and just rule which opens the door of the court to an inquiry whether the notice did in fact mislead. If it did not in fact mislead, but if its deficiencies or mistakes were helped out by other information given to the proper officers, or by other knowledge on their [the city's] part, no matter how acquired, then it would turn the statute into a mere trap for the ignorant and unskillful, to deprive them of a right of action because of failing to do something which caused the municipality no injury and put it to no disadvantage.”

In addition, the case clearly falls within provisions of the second rule above stated to wit, that, where the municipality has, as in the present case, received a defective claim, made full investigation of the accident, and then rejected it for reasons other than a defect in the form of notice or its contents, the city is estopped from relying upon a defect in the notice of claim to prevent recovery in an action subsequently brought. (See numerous cases above cited.)

For the foregoing reasons in my opinion the judgment of the trial court should be reversed.

WOOD, Justice.