City of Phoenix v. Mayfield, Civil 3291

• Decision Date: 21 March 1933
• Docket Number: Civil 3291
• Citation: 20 P.2d 296,41 Ariz. 537
• Parties: CITY OF PHOENIX, a Municipal Corporation, Appellant, v. VIRGINIA B. MAYFIELD, Administratrix of the Estate of LENA PEARL GUNN, Deceased, Appellee
• Court: Arizona Supreme Court

20 P.2d 296

41 Ariz. 537

CITY OF PHOENIX, a Municipal Corporation, Appellant, v. VIRGINIA B. MAYFIELD, Administratrix of the Estate of LENA PEARL GUNN, Deceased, Appellee

Civil No. 3291

Supreme Court of Arizona

March 21, 1933

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Mr. L C. McNabb, for Appellant.

Messrs Cox & Moore, for Appellee.

OPINION

ROSS, C. J.

The administratrix, Mayfield, brought this action for damages to the estate of Lena Pearl Gunn, alleging that the latter came to her death through the negligence of the defendant, city of Phoenix; and, from a verdict and judgment in her favor, the city appeals.

The intestate came to her death in an accident at about 9 o'clock in the evening of October 30, 1931, at the junction of Jackson Street and Nineteenth Avenue, when the automobile in which she was riding ran into an open irrigation canal, about 10 feet wide and 4 feet deep, owned and maintained by the Salt River Valley Water Users' Association. The canal parallels Nineteenth Avenue, north and south, and is just inside the eastern limits of that avenue. Its banks rise above the natural grade of the surrounding ground from 1.6 feet on the west to 4.7 feet on the east side thereof.

Nineteenth Avenue is one of the principal thoroughfares of the city. It is about 94 feet wide at this point, with an 18-foot pavement near its center.

Jackson Street, as platted, runs through the city east and west, and crosses Nineteenth Avenue at right angles. Coming from the west, it is open and improved for traffic up to the canal on the east side of Nineteenth Avenue. From this point for a distance of 200 feet easterly Jackson Street has not been opened or improved by the city. This space is covered with cinders and slag from a near-by foundry, and is crossed near its east end by the Santa Fe Railroad tracks. Jackson Street from the east end of these 200 feet is open and improved. It was electrically lighted on the night of the accident and being used for traffic both east and west of the unimproved part.

The car in which deceased was riding with four other persons was a 1930 Ford roadster. The deceased and a companion were in the rumble seat. Three persons occupied the front seat, one being Howard Conoway, the driver, a young man 24 years of age. They started from Twenty-First Avenue on Jackson Street, going east, and while traveling, as plaintiff's witnesses say about 20 miles an hour and defendant's witnesses say 40 or more miles an hour, ran into the open canal, and as a result the deceased received injuries from which she later died.

The negligence charged is in leaving the irrigation canal "without any guards or rails or barriers or notice or warning of any kind or character to notify the public of the existence of said precipitous embankment or canal on said street," and in permitting "said street and said irrigating canal to remain in such unsafe condition that one traveling eastward on said Jackson Street and approaching 19th Avenue could look and see and the driver of the car in which plaintiff's intestate was riding, while exercising due care for his own safety and the safety of the passengers in said automobile, did look eastward and see other automobiles and vehicles approaching from the east on said Jackson Street, and it being dark and the light shining on the ground immediately east of said 19th Avenue and Jackson Street made said ground have the appearance of an open street, and by reason thereof the driver of said automobile proceeded on eastward without stopping and said automobile ran into said unprotected irrigation ditch, as aforesaid, causing the injury and death of plaintiff's intestate as above set out."

The defenses consist of a general demurrer, denials and contributory negligence, in that the condition of the street was in plain, obvious, and full view, and was known by the deceased, and notwithstanding she permitted Conoway to drive into the unopened portion thereof at an excessive and dangerous rate of speed and over and against the embankment of the irrigating canal, thus carelessly and negligently contributing to her injuries and death.

The first question to be decided is whether the transcript of the reporter's notes is properly a part of the record. Appellee made a motion to strike it, and, although this motion has heretofore been granted, we have concluded to reconsider it. It appears the transcript was filed with the clerk of the superior court on September 19, 1932, but notice thereof was not served upon appellee's counsel until September 30th. The judge approved and certified to its correctness on October 11th.

Section 3865, Revised Code of 1928, provides that notice of the filing of the transcript of the reporter's notes shall be served upon the opposite party, without stating when. But, when construed with other provisions of that section and the succeeding section, it is probable it was intended that the notice should be served at or before its filing. But we construe this requirement as directory only, and therefore not jurisdictional. The purpose of the notice to the opposite party is that he may be afforded an opportunity to agree to the correctness of the transcript or to specify wherein it is defective, and to allow him twenty days to do this if he so desires. Section 3866, Id.

The transcript, after appellee was served with notice of its filing, remained on file with the clerk for thirteen days, as shown by the filing marks thereon, and no objection was taken to it during such period. Nor has it been suggested since that it is incorrect or defective. If there were some showing by appellee that the transcript is defective and that the thirteen days it remained with the clerk after appellee was served with notice was not sufficient time to examine it for errors or defects, the motion to strike would present a very different question. We assume, in view of the judge's certificate and appellee's acquiescence, that the transcript is correct. Such being the situation, its consideration cannot in any manner result in any injury to appellee of which she may complain. Without stating the reasons the strict letter of the statutes was not followed, we think they were such as to justify, if not require, that we exercise our discretion in the matter and reinstate the transcript as a part of the record, especially since it is unquestionably correct.

We wish to say, however, that the observance of these procedural matters is important, and neglect to follow them substantially will not be tolerated. Parties must understand that they are to be followed and that departures from them, unless excused upon the soundest reasons, will not be permitted. Cases should when possible be decided on their merits rather than go off on some technical ground; and to that end, while a substantial compliance with the statutes and the rules will be exacted, too great strictness should not be required.

The complaint does not allege that a claim or demand for damages to the estate of plaintiff's intestate was presented to the city manager for allowance or disallowance before bringing action. Appellant strenuously insists that such an allegation was essential under section 14 of chapter 18 of the charter of the city of Phoenix, and that the overruling of the general demurrer was for that reason error. The pertinent part of section 14 reads as follows:

"The manager must not hear or consider any claim in favor of any person against the City unless an account properly made out giving all the items of the claim, duly verified as to its correctness and that the amount of the claim is justly due, is presented to him within six months after the last item of the account accrued, except claims of officers and employees of the City for their salaries. When the manager finds that any claim presented is not payable by the City or is not a proper city charge it must be rejected. If he finds it to be a proper city charge, but for a greater amount than is due, the manager may allow the claim in part and order paid the portion allowed on the claimant filing his receipt in full for his account. A claimant who is not satisfied with the rejection of his claim or demand, or the amount allowed him on his account, may sue the City therefor at any time within three (3) months after final action of the manager, but not afterwards. No demand on the City shall be allowed by the manager in favor of any person in any manner indebted to the City without first deducting such indebtedness, or in favor of any officer whose accounts shall not have been rendered and approved, or who shall have neglected or refused to make his official returns or reports in writing, as required by the provisions of this Charter or any ordinance of the Commission, or in favor of any officer who shall wilfully neglect and refuse to perform any of the duties of his office."

Unquestionably a claim or demand of the kind described must be made out in the manner and form provided and presented to the city manager "within six months after the last item of the account accrued," but the whole context of said section 14 shows that the claims or demands referred to are those growing out of contract and not tort. If the claim or demand be for labor or goods or merchandise furnished the city, it must be itemized and verified and presented within six months after the last labor or after the last item of merchandise became due. Damages for unlawful death or personal injuries are not described by items accruing at different times, nor can they be itemized in an "account" and their "correctness" verified, nor can they be described as "due" the claimant as in debt. Miller v. Village of Mullan, 17...