Opinion
Hearing Granted by Supreme Court June 17, 1935.
Appeal from Superior Court, Los Angeles County; Joseph P. Sproul, Judge.
Action by Alice Douglass against the City of Los Angeles. From a judgment for defendant, plaintiff appeals.
Reversed COUNSEL
Zach Lamar Cobb and Earl A. Littlejohns, both of Los Angeles, for appellant.
Ray L. Chesebro, Frederick Von Schrader, and D. M. Kitzmiller, all of Los Angeles, for respondent.
OPINION
SCOTT, Justice pro tem.
Plaintiff sued to recover damages for personal injuries alleged to have been sustained as the result of a defective and dangerous bridge and public street maintained by defendant. As a condition precedent to such suit, plaintiff filed with the board of public works of defendant city a proper and timely claim for compensation for such detriment alleged to have been suffered by her. Upon trial defendant interposed an objection to any testimony on the ground that the pleadings did not state a cause of action by reason of the fact that plaintiff had not filed a further and similar claim with the clerk of the city council. The objection was sustained, and judgment for defendant was thereafter entered. Plaintiff appeals, contending that the demand filed with the board of public works was sufficient. Respondent concedes that under the provisions of the charter of defendant city the claim was properly filed, but urges that under Act 5149, enacted in 1931 (Stats. 1931, p. 2475, Deering’s Gen. Laws, vol. 3, p. 2562), a further claim must be filed with the clerk of the city council.
Article 11, § § 6 and 8, of the Constitution of California, empowers defendant city under its charter to make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations of the charter; and, in respect to other matters, it is subject to general laws. It cannot be questioned that the construction and maintenance of a bridge and public street such as are involved here are municipal affairs. Ex parte Prentice, 24 Cal.App. 345, 141 P. 220; Fragley v. Phelan, 126 Cal. 383, 58 P. 923. The charter made them a special charge of the board of public works, and it was by reason of their acts or omissions that the liability if any was incurred. Since no question was raised at the trial nor on this appeal as to the sufficiency of the claim filed with the board of public works as far as the charter provisions relating thereto are concerned, we deem it unnecessary to discuss the case of Beeson v. City of Los Angeles, 115 Cal.App. 122, 300 P. 993, upon which reliance is placed, but direct attention to the views expressed in Robertson v. City of Los Angeles (Cal.App.) 44 P.2d 461, this day decided. It appears that Act 5149 would not have the effect of imposing its provisions upon those who were properly proceeding under the city charter. O. T. Johnson Corp. v. City of Los Angeles, 198 Cal. 308, 245 P. 164.
We distinguish the situation presented in the instant case from that considered by the court in Bernreither v. City of New York, 123 A.D. 291, 107 N.Y.S. 1006, 1008, and relied on by respondent, where a legislative requirement for filing of a notice of intention to sue with counsel for the city, in addition to a demand filed with the comptroller as required by the charter, was held on appeal to be a proper condition precedent to suit against the city. The court there remarked that these two requirements "were independent provisions, designed to conserve different objects." Our attention has not been directed to any constitutional provision in that state comparable to the provisions of article 11, § § 6 and 8, of the Constitution of this state, above referred to. In the case before us we find no different objects to be subserved by the two notices which respondent contends are required.
We conceive the true rule to be that enunciated by the Court of Appeals of New York in Sheehy v. City of New York, 160 N.Y. 139, 54 N.E. 749, 750, in passing upon an appeal from the Supreme Court, Appellate Division, of that state, as reported in 29 A.D. 263, 51 N.Y.S. 519. In construing the legislative requirement for service upon counsel for the city of a notice of intention to commence an action in a case where a claim was fully presented but no such specific intention to sue was declared, the court said: "The plain object of this statute [requiring notice] was to provide means by which a city could better guard against the imposition of unfounded claims by being at once informed of their existence, so that its officers might more readily pursue an investigation of their merits than if longer postponed. On the other hand, it could not have been its purpose to deny to a party injured by the negligence of a city any remedy against it, nor to unnecessarily embarrass parties in the enforcement of their rights. While, in an action like this, the statute must be substantially complied with or the plaintiff cannot recover, still, where an effort to comply with it has been made, and the notice served, when reasonably construed, is such as to accomplish the object of the statute, it should, we think, be regarded as sufficient."
It would be a superfluous impediment to a citizen seeking legal redress for an injury to require such duplicate notice, and would be contrary to the clear intent of our Constitution and the decisions construing it. The objection should have been overruled, and the case tried on its merits.
Judgment reversed.
We concur: STEPHENS, P. J.; CRAIL, J.