Sweet v. Salt Lake City

• Decision Date: 30 July 1913
• Docket Number: 2450
• Citation: 43 Utah 306,134 P. 1167
• Court: Utah Supreme Court
• Parties: SWEET v. SALT LAKE CITY

134 P. 1167

43 Utah 306

SWEET v. SALT LAKE CITY

No. 2450

Supreme Court of Utah

July 30, 1913

APPEAL from District Court, Third District; Hon. George G Armstrong, Judge.

Action for personal injuries by F. A. Sweet against Salt Lake City.

Judgment for plaintiff. Defendant appeals.

REVERSED AND REMANDED.

H. J Dininny and Aaron Myers for appellant.

E. V Higgins for respondent.

FRICK, J. McCARTY, C. J., concurs. STRAUP, J., concurring in the result.

OPINION

FRICK, J.

This is an action to recover damages for injuries sustained by the occupants of respondent's automobile and to said automobile by driving the same into an exposed and uncovered conduit or ditch in one of the streets of Salt Lake City, which ditch, it is alleged, was negligently left unprotected and unguarded by said city, appellant herein. We shall state the facts deemed necessary in connection with the particular point decided.

Appellant's counsel contend that the court erred in overruling their general demurrer to the complaint. The question with regard to the demurrer arises as follows:

We have a statute (Comp. Laws 1907, section 312) which, so far as material here, provides:

"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, . . . culvert, or bridge, . . . or from the negligence of the city or town authorities in respect to any such street, . . . culvert, or bridge, within thirty days after the happening of such injury or damage, be presented to the city counsel . . . 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. Every claim, other than claims above mentioned, against any city or town, must be presented, properly itemized or described and verified as to correctness by claimant or his agent, to the city council . . . within one year after the last item of such account or claim accrued, and if such account or claim is not properly or sufficiently itemized or described or verified, the city council . . . may require the same to be made more specific, as to the itemization or description, or to be corrected as to the verification thereof."

Section 313 provides that, unless the claim is presented to the city council "in the manner and within the time in section 312 specified," it shall be barred; "provided, that in case an account or claim other than a claim made for damages on account of the unsafe, defective, dangerous, or obstructed condition of any street, . . . culvert, or bridge, is required by the council or board to be made more specific as to itemization or description, or to be properly verified, sufficient time shall be allowed the claimant to comply with such requirement." (Italics ours.)

Without pausing to set forth the allegations of the complaint, it must suffice to say that the first contention that the complaint is defective in substance because it does not sufficiently allege the defective, dangerous, or unguarded condition of the street is untenable.

The next contention is that the complaint is defective in substance because it contains a claim for injuries and damages which was not included in the claim presented to the city council. This contention must also fail for the reason that it was alleged in the complaint that a claim had been presented in which certain items of damages were claimed. True, there was an item or claim for damages in the complaint for $ 1000 which was not included in the original claim presented to the city council; but, inasmuch as there were certain items of damages contained in the complaint which were also contained in the original claim, the complaint is not vulnerable to a general demurrer, since it at least constituted a good cause of action for some amount.

Appellant's next contention is more serious. Respondent, in presenting his claim to the city council for allowance, complied with the provisions of section 312, supra, by specifically stating the nature, extent, and amount of the injury and damages sustained and claimed. The aggregate of the items claimed amounted to $ 245.69. Appellant did not audit and allow the same within the time provided by the statute, and hence this action was commenced. In the complaint, after setting forth the items of damage, etc., contained in the original claim presented to the city council, respondent also claimed additional damages in the following words: "To depreciation in value of said automobile by reason of its general impairment caused by such falling (into the ditch or conduit) and by reason of the making of necessary repairs thereon." In the original claim presented there were items for repairs and otherwise as follows: "To necessary repairs of automobile, $ 133.19; to loss of pocketbook containing money and jewelry," lost in the ditch into which the automobile was driven, $ 78; to medicine and medical attendance to the occupants of said automobile, . . . $ 14.50;" and for taking the automobile out of the ditch $ 20--making a total of $ 245.69 claimed in the original claim presented as aforesaid. No reason was pleaded why the item for $ 1000 was not originally claimed, or why it was not presented to the city council within the time required by the statute or at any time. When the respondent offered evidence to sustain the claim for $ 1000, counsel for appellant made proper objections, among others, that the claim had not been presented for audit and allowance as required by section 312, supra. The objections were overruled and the evidence was admitted, and the jury allowed respondent the sum of $ 750 "damages," which is $ 504.31 in excess of or more than double the original amount claimed. After the evidence with respect to said $ 1000 item had been admitted by the court, and before the case was submitted to the jury, appellant's counsel moved that the same be stricken from the record, which motion was denied. After the evidence of both sides was all in, appellant's counsel also requested the court to charge the jury to disregard all of the evidence relating to said $ 1000 item. The court refused to so charge, but submitted the same to the jury, and counsel assign the refusal of the court to so charge as error.

Respondent contends that, inasmuch as appellant has not assigned error upon the ruling of the court in admitting the evidence with respect to the $ 1000 item, the error, if any, in so doing, is waived. Not so. Counsel had their choice of methods in presenting the question to this court. They could have insisted upon their objection and exception to the court's ruling in admitting the evidence, or they could have relied on the motion to strike the evidence, or upon the refusal by the court to give their request to charge the jury to disregard the evidence. By objecting to the admission of the evidence when it was offered appellant had laid the foundation for the right to pursue the method adopted by it and could thus raise the question of law by offering a request to direct the jury to disregard the evidence upon the theory that it was not proper evidence, to be considered in the case. Appellant was not required to present the legal question to this court in more than one form, although it had presented it to the trial court in several ways.

The question to be determined, therefore, is whether under the circumstances, the respondent could legally claim, and adduce evidence in support of the claim, that his automobile had suffered damages for the reasons stated to the extent of $ 1000, or to the extent of any amount in excess of the amount claimed by him in the claim originally presented to the city council. His counsel seek to sustain the court's rulings upon the grounds:

(1) That although the amount claimed must be stated in the claim that is presented to the city council, yet the amount claimed is not controlling provided it develops after the original claim is presented that there are other consequential damages which were caused by the injuries complained of and referred to in the claim; and (2) that where the injured party cannot on account of physical or mental inability present the claim within the time fixed by the statute, or cannot state the amount of the damages because he did not and could not ascertain it within such time, he may nevertheless recover the actual amount of damages sustained by him.

To sustain the first proposition the case of Mackay v. Salt Lake City, 29 Utah 247, 81 P. 81, 4 Ann. Cas. 824, is relied on. In that case this court in effect held that where the extent of the injuries (in that case personal injuries) are not known at the time the claim is presented to the city council, and thereafter it develops that the injuries are more serious than it was supposed and proved to be permanent and it is made to appear that the injuries are the ones described in the original complaint, under such circumstances the injured person may nevertheless prove and recover the full amount of damages sustained by reason of the injuries complained of. The...