Berger v. Salt Lake City

• Citation: 56 Utah 403,191 P. 233
• Decision Date: 01 July 1920
• Docket Number: 3458
• Court: Supreme Court of Utah
• Parties: BERGER v. SALT LAKE CITY

191 P. 233

56 Utah 403

BERGER v. SALT LAKE CITY

No. 3458

Supreme Court of Utah

July 1, 1920

Appeal from District Court, Third District, Salt Lake County; J Louis Brown, Judge.

Action by Emma S. Berger against Salt Lake City. Judgment for plaintiff, and defendant appeals.

REVERSED.

Wm. H Folland, City Atty., and H. H. Smith, Asst. City Atty., both of Salt Lake City, for appellant.

Frank B. Scott and Willard Hanson, both of Salt Lake City, for respondent.

FRICK J. CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

FRICK, J.

The plaintiff obtained judgment against Salt Lake City for damages for personal injuries which she sustained by falling on one of the sidewalks of said city, and the city appeals.

The plaintiff, in her third amended complaint, after stating the necessary matters of inducement, alleged that during the winter of 1916-17 "large quantities of snow and sleet had fallen and banked upon the said sidewalk, and had partially melted, and had become packed and frozen in such a manner as to leave an uneven surface, and to lay in ridges in rounded form and bumps, so that said sidewalk was slippery and dangerous to pedestrians, * * * and by reason of pedestrians tramping over the same, and by reason of the freezing and thawing of the said snow and sleet, the surface became rough and full of ridges and depressions which were several inches in depth"; that the appellant had negligently failed to remove said snow and ice from said sidewalk, and had failed "to exercise reasonable care to keep said sidewalk in a reasonably safe condition for pedestrians"; that on the 15th day of January, 1917, while walking on said sidewalk, "and while in the exercise of due care and caution," the plaintiff, "by reason of said unevenness and roughness of said snow, ice, and sleet," slipped and fell and fractured both bones of her left arm; that on January 25, 1917, plaintiff filed her verified claim against said city, "stating the particular time at which the injury happened, and designating and describing the particular place in which it occurred, and also particularly describing the cause and circumstances of said injury and damages, and so far as known to claimant the name of the person, firm, or corporation who created, or brought about or maintained, the defect, obstruction, and condition causing such accident and injury, and also stating the nature and probable extent of such injury, and the amount of damages claimed on account of same"; that said claim was disallowed; that by reason of such injuries plaintiff had sustained damages in the sum of $ 5,000, for which she demanded judgment.

The appellant filed its answer to the complaint, in which, after admitting the matters of inducement, and denying all negligence, it, as affirmative defenses, averred: (1) Contributory negligence; (2) that the injuries were caused by natural causes over which appellant had no control; and (3) that the plaintiff had not presented her claim for damages as provided by our statutes, stating the particulars.

A great many errors are assigned on the part of appellant, which are exhaustively argued in its brief. The first assignment we shall consider relates to the filing of plaintiff's claim for damages.

Our statute (Comp. Laws Utah 1917, section 816), which was in force when this action was commenced, so far as material here reads as follows:

"Every claim against an incorporated city or town for damages or injury alleged to have been caused by the defective, unsafe, dangerous, or obstructed condition of any street, alley, crosswalk, sidewalk, culvert, or bridge, * * * or from the negligence of the city or town authorities in respect to any such street, alley, crosswalk, sidewalk, culvert, or bridge shall, within thirty days after the happening of such injury or damage, be presented to the city council * * * in writing, signed by the claimant or by some person by claimant authorized to sign the same, and properly verified, stating the particular time at which the injury happened, and designating and describing the particular place in which it occurred, and also particularly describing the cause and circumstances of the said injury or damages, * * * and also stating the nature and probable extent of such injury, and the amount of damages claimed on account of the same; * * * and no action shall be maintained against any city or town for damages, or injury to person or property, unless it appears that the claim for which the action was brought was presented as aforesaid to the city council * * * and that such council * * * did not within ninety days thereafter audit and allow the same." (Italics ours.)

The succeeding section provides that unless the claim is presented to the city council "in the manner and within the time in section 816 specified" it shall be barred.

We call special attention to the parts that we have italicized, which, as will appear hereinafter, are very material, for the reason that certain decisions of this court are relied upon. At the time those decisions were rendered, however, the words in italics were not in the statute, but were thereafter inserted by amendment.

The particular question on this appeal respecting the statute arose as follows:

The plaintiff, within the time provided by statute, filed a claim duly verified, in words as follows:

"Salt Lake City, a Municipal Corporation, to Emma S. Berger, Dr.

"Jan. 15, 1917.

"To broken left forearm suffered by the claimant by reason of slipping and falling on sidewalk in front of 167 North Main street, of which a Mr. Jensen was the occupant, Tuttle Bros. agents, and Mr. W. E. Smelles. Such falling was caused by the dangerous condition of such sidewalk by reason of four inches of ice and frozen snow being allowed to accumulate thereon, and to remain on same for several weeks last past, contrary to the provisions of the city ordinance in regard to the removal of snow from sidewalks. Both the radius and ulna bones being broken completely off, and there being the possibility of it being six weeks at least before the claimant will be able to use the arm at all. The accident happened about three or four o'clock in the afternoon of January 15, 1917. $ 1,000.00."

It will be observed that there is no claim or intimation that the result or effects of the injury would be permanent, and the amount claimed is limited to $ 1,000. Notwithstanding that fact, however, the court permitted the plaintiff to recover upon the theory that the effects of the injury were permanent, and also permitted her to claim the sum of $ 5,000 in her complaint, and allowed a recovery and entered judgment for a sum in excess of $ 1,000.

Appellant's counsel, with much vigor, argue that under our statute the injured claimant is limited in her recovery to the amount specified in her claim. Upon the other hand, plaintiff's counsel contend that such is not the law, and in support of their contention cite Mackay v. Salt Lake City, 29 Utah 247, 81, P. 81, 4 Ann. Cas. 824, and Connor v. Salt Lake City, 28 Utah 248, 78 P. 479.

While it is true that in the Mackay Case it was held that the plaintiff was not limited in his recovery to the amount stated in his claim, yet it is also true that at the time the injury arose in that case the statute did not require the claimant to state the "amount of damages claimed." After that case was decided, however, the statute was amended so as to require the claimant to state the amount of damages that he claimed. The changes in the statute since the Mackay Case was decided are indicated by the italicized words. It would, therefore, be folly to contend that by the amendments to the statute no change was intended or effectuated. The statute now requires the claimant to state the "amount of damages claimed." The change in the statute was no doubt effectuated for the express purpose of obviating the conclusion reached in the Mackay Case. The change having been made, it is our duty to give it effect. To that effect is the holding in a later case. Sweet v. Salt Lake City, 43 Utah 306, 134 P. 1167.

While it is true that in the Sweet Case the question arose in a somewhat different form, yet the principle was the same there as it is here. In the Sweet Case the decision in the Mackay Case is referred to, and the changes in the statute are pointed out.

The decisions of this court (Sweet v. Salt Lake City, supra, and Dahl v. Salt Lake City, 45 Utah 544, 147 P. 622) are in harmony with the overwhelming weight of authority, which is to the effect that it is within the power of the Legislature to impose such conditions upon the right to sue cities and towns, which are merely arms of the state government, as in its judgment may seem wise and proper, and that the conditions which are thus imposed are conditions precedent, and cannot be ignored either by the claimants or by the courts.

In determining the effect of a particular statute upon this subject it is of the utmost importance to keep in mind its terms and provisions. An examination of the cases will disclose that the terms of the statutes in the different states vary to a considerable extent, which fact is frequently overlooked by counsel in citing cases in support of their respective views. In many statutes it is not made essential to state the amount of damages claimed, and hence a failure to do so is not controlling. Under such statutes, if the amount be stated judgment may, nevertheless, be obtained in excess of the amount stated. There are statutes, however like ours, in which it is provided that the amount of damages claimed shall be stated, and, where such is the case, the courts have held that the recovery must be limited to the amount stated, unless for good and sufficient cause an...