Hall v. City of Los Angeles ( 1941 )

THE COURT. —

A petition for hearing in this case was granted to the end that further consideration be given to the contentions of the appellant. On such consideration we agree with the disposition of the appeal by the District Court of Appeal of the Second Appellate District and adopt as the opinion of this court the opinion of that court prepared by Justice [W. J.] Wood with the modifications that hereinafter appear:

“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. (Stats. 1923, p. 675; 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 (Stats. 1931, p. 2475; 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 Pac. (2d) 516]; Sandstoe v. Atchison, T. & S. F. Ry. Co., 28 Cal. App. (2d) 215 [82 Pac. (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 Pac. (2d) 29]. In the Sandstoe ease this court held that a claim (apparently complete and regular on its face) which was filed in duplicate with the city eontroller 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.”

In each of these cases there was compliance with all of the requirements enumerated by the statute, but the manner of complying with one of them was defective. The courts held that a defect in the form of compliance is not fatal so long as there is substantial compliance with the essentials of the ■ requirement. In the present case, however, there is an entire failure on the part of the plaintiff to comply with one of the mandates of the statute. Substantial compliance cannot be predicated upon no compliance. A contrary holding woujd permit a claimant to bring suit against a city on the basis of a claim that included none of the information required by the statute if he offered .to show that the city acquired the information independently of the claim. Such a holding wmuld emasculate the statute.

The present case is governed not by the doctrine of substantial compliance but “by the principles enunciated in Cooper v. County of Butte, supra, and Spencer v. City of Calipatria, 9 Cal. App. (2d) 267 [49 Pac. (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 [192 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. 561].) 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 Pac. (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, 40 Cal. App. (2d) 174 [104 Pac. (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. c§ 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.