Parodi v. City and County of San Francisco

• Decision Date: 19 May 1958
• Docket Number: No. 17710,17710
• Citation: 160 Cal.App.2d 577,325 P.2d 224
• Parties: Jennie PARODI, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 224

325 P.2d 224

160 Cal.App.2d 577

Jennie PARODI, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant and Respondent.

No. 17710.

District Court of Appeal, First District, Division 1, California.

May 19, 1958.

Rehearing Denied June 18, 1958.

Hearing Denied July 16, 1958.

Sidney N. Brandis, John H. Brill, San Francisco, for appellant.

Dion R. Holm, City Atty., Agnes O'Brien Smith, Deputy City Atty., San Francisco, for respondent.

BRAY, Justice.

Plaintiff appeals from a judgment in favor of defendant entered upon a motion made pursuant to section 630, Code of Civil Procedure (granting a previously denied motion for directed verdict after jury fails to reach a verdict).

Question Presented.

Propriety of granting the motion. This depends solely upon whether the variance between the place of accident described in the claim presented to the city and in the original complaint and that described in the amended complaint and in plaintiff's proof is fatal.

Facts.

Plaintiff's complaint alleged that she was injured while a passenger on defendant's trolley coach through defendant's negligent operation of the coach 'near the intersection of Steiner and Broadway Streets,' San Francisco. The verified claim which she filed with defendant as required by section 87, San Francisco Charter, stated the place of the accident in identical language. At the trial, plaintiff testified that the accident happened at the intersection of Fillmore and Sutter Streets (some eleven blocks from the other intersection). Defendant's evidence showed that the accident happened at the location given in the claim and the original complaint. Plaintiff was permitted to amend her complaint to state the place of accident in accordance with her testimony, namely, Fillmore and Sutter Streets. The location stated in the claim is a hilly area, while the Fillmore-Sutter area is relatively level. Plaintiff's testimony tended to show that while the coach was stopped at Fillmore and Sutter Streets she endeavored to change her seat on the coach and while doing so the coach started with a jerk, throwing her to the floor. Defendant's evidence tended to show that there was no unusual motion of the coach, but that she fell in trying to change her seat while the coach was making a turn at Steiner and Broadway, and that she had admitted that her fall was her own fault. At the proper times, defendant moved for a nonsuit and for a directed verdict on the ground of the variance between the claim and the amended complaint. These motions were denied. After four hours of deliberation the jury deadlocked and were dismissed. Thereafter defendant moved under section 630 for judgment upon its previous motion for a directed verdict. The motion was granted.

Validity of Claim.

Does the giving of the wrong intersection in the city as the place of the accident invalidate the claim? It is conceded that this action will not lie unless the claim required by section 87 of the charter be filed. ¹ Section 87 provides in part that the claim must include the 'place of the occurrence or injury for which damages are claimed * * *.'

The California cases considering claim statutes have held that substantial compliance with the statute only is required and have set forth what is necessary to constitute substantial compliance. Thus Silva v. County of Fresno, 1944, 63 Cal.App.2d 253, 257-258, 146 P.2d 520, 522, states: '* * * the plain purpose of the statute is to guard the county against imposition by requiring notice of the circumstances of an injury upon which a claim for damages is made so that its authorities may be in a position to investigate the facts as to the time and place and to make proper investigation of the condition of the premises and decide whether the case is one for settlement or litigation. When a notice contains the information necessary for that purpose it is substantial compliance with the statute, but when it falls short of that test it is insufficient.'

As to what is substantial compliance Perry v. City of San Diego, 1947, 80 Cal.App.2d 166, 169, 181 P.2d 98, 101, says: '* * * it seems clear that the California courts have taken a reasonably liberal view of the claim statutes and that where a reasonable attempt is made to comply with the law in good faith and no intent to mislead or conceal appears the claim will be upheld in the absence of anything indicating that the municipality has been mislead [sic], if the claim substantially conforms to the requirements of the statute.'

Uttley v. City of Santa Ana, 1933, 136 Cal.App. 23, 25, 28 P.2d 377, 379, points out: "* * * when, therefore, there is no evident intention to mislead, but a bona fide attempt to comply with the law, the notice is sufficient in the absence of any evidence that it did in fact mislead."

Indicate of the liberality of the courts in dealing with notices of this nature are the following situation in which the notices, although apparently defective, were held to be sufficient: failure to specify exact date of injury, Knight v. City of Los Angeles, 1945, 26 Cal.2d 764, 160 P.2d 779; failure to specify the cause of injury to be the negligence of some particular agent, Perry v. City of San Diego, supra, 80 Cal.App.2d 166, 181 P.2d 98; claim filed with wrong official, Milovich v. City of Los Angeles, 42 Cal.App.2d 364, 108 P.2d 960; claim stated injured person's school address instead of residence, Ridge v. Boulder Creek etc. School Dist., 1943, 60 Cal.App.2d 453, 140 P.2d 990; claim gave attorney's address instead of claimant's, Uttley v. City of Santa Ana, supra, 136 Cal.App. 23, 28 P.2d 377; claim did not itemize facts surrounding the injury, Dillard v. County of Kern, 1943, 23 Cal.2d 271, 144 P.2d 365, 150 A.L.R. 1048.

Applying the rules above mentioned to the notice of claim here, we do not doubt that it was sufficient. If the accident occurred as claimed by defendant at the place stated in the claim--Steiner and Broadway, then after the accident the coach was moved to the Fillmore and Sutter intersection where admittedly plaintiff was removed from the coach to an ambulance. There is nothing unreasonable in an elderly woman whose hip was broken by a fall in a moving coach, and who is removed at a particular location, mistaking that location for the place of the injury. The city had already taken statements from plaintiff and the coach operator as to the accident, and could have had no difficulty in tying up the claim with these statements and the removal of the injured plaintiff at the location given in the claim. The testimony of a passenger and the statement of the coach operator differed from that of plaintiff in that the former two gave the place of accident as Steiner and Broadway.

The claim was sufficient so that defendant's 'authorities may be in a position to investigate the facts as to the time and place * * * and decide whether the case is one for settlement or litigation.' Silva v. County of Fresno, supra, 63 Cal.App.2d at page 258, 146 P.2d at page 522. There is no evidence that plaintiff did not attempt in good faith to comply with the law or that she had any intent to mislead or conceal. This meets the tests of Perry v. City of San Diego, supra, 80 Cal.App.2d 166, 169, 181 P.2d 98, and Uttley v. City of Santa Ana, supra, 136 Cal.App. 23, 25, 28 P.2d 377. In the Silva case, supra [63 Cal.App.2d 258, 146 P.2d 521], the claim generally described the place of injury as 'a public highway approximately four miles east of Dos Palos in the County of Fresno.' It was held that this was a substantial compliance as the officials charged with investigation were able to locate the place of...