Opinion
No. 14022
12-19-1949
EDWARD BROWN & SONS v. CITY AND COUNTY OF SAN FRANCISCO.
Arthur B. Dunne, Dunne & Dunne, San Francisco, for appellant. Dion R. Holm, City Attorney of the City & County of San Francisco, William F. Bourne, Deputy City Attorney of the City and County of San Francisco, for respondent.
EDWARD BROWN & SONS
v.
CITY AND COUNTY OF SAN FRANCISCO.
Dec. 19, 1949.
Hearing Granted Feb. 16, 1950. *
Arthur B. Dunne, Dunne & Dunne, San Francisco, for appellant.
Dion R. Holm, City Attorney of the City & County of San Francisco, William F. Bourne, Deputy City Attorney of the City and County of San Francisco, for respondent.
WARD, Justice.
This is an appeal from the judgment of the superior court on a directed verdict in favor of the defendant City and County of San Francisco. The action was one for damages arising out of the flooding of a basement office belonging to the plaintiff, Edward Brown & Sons, caused by an alegedly defective sewer.
There are two issues on appeal,--(1) whether the proper procedure was adopted by the plaintiff in filing its claim, and (2) whether there was any evidence to establish a duty in the defendant to repair the sewer in question and therefore a liability for its nonperformance. If the defendant city and county is correct with respect to the first issue relative to filing of the claim, then the question of the duty resting on the defendant to repair the sewer becomes of minor importance.
The plaintiff owns the building at 432 California Street, on the north side of the street between Sansome and Montgomery streets. The basement of the building extends under the sidewalk to a retaining wall at the curb line. The plaintiff conducts a part of its insurance agency business in this basement. The defendant city and county owns and maintains a brick combined storm and sanitary sewer, which is of oval shape approximately 3 feet by 5 feet, extending down the center of California Street, flowing eastward. At the west line of Sansome Street this sewer narrows down to an 18-inch clay pipe by which it connects with a main concrete sewer, 8 feet 6 inches in diameter, flowing north under Sansome Street. The sewers of the east-west streets, such as the one on California Street, generally serve the eastern portion of an area known as Nob Hill and down to the level of the filled-in land portion of lower California Street. In front of the plaintiff's premises in the area mentioned a concrete side sewer entered the California Street sewer, about 1 foot above the bottom thereof, and extended to the curb line and retaining wall where it was connected by a trap to the cast iron pipe plumbing system of the building.
From approximately September, 1940, through January, 1941, the plaintiff had trouble with seepage of water into its basement. The city water department was called, which made an investigation and reported that the difficulty could not be attributable to the water system. The superintendent of sewer repair for the City and County of San Francisco testified that in order to ascertain the source of the trouble he put red dye and water into the trap of the side sewer and that it did not seep into the basement, though other water did. About 11 days later green dye and water were put into leader pipes on the roof and the dyed water did ssep into the basement through cracks in the floor and around the plumbing fixtures. On January 21, 1941, a heavy rain coincided with a high tide. The elevation of the California Street sewer at the point in front of the plaintiff's property is lower than the top of high tide as indicated for that date. The plaintiff's basement became flooded to a depth of about 28 inches. A plumber testified that he arrived at the premises shortly after 5:00 p. m. that day, found that floor of the basement bucked up and evidence of disintegration in the concrete side sewer just outside the retaining wall. He made repairs by 'drifting' a new cast iron pipe through the existing side sewer leading to the main sewer and connected it at the street side of the building trap. The city sealed it at the other end connecting it to the main sewer.
On March 19, 1941, 57 days after the date of the flood damage, the plaintiff presented a claim in the amount of $7,000 to the city controller. (See § 87, San Francisco Charter.) The receipt of this claim was acknowledged by the controller the following day. No objection was made by the defendant as to the place of presentation and filing of the claim. By letter of April 4, 1941, from the city attorney's office, the plaintiff's claim was rejected on the merits, stating that the break being in the side sewer within the sub-sidewalk area the responsibility therefore must be assumed by the property owner. The plaintiff brought action against the City and County of San Francisco, and from March 17 to 19, 1948, it was tried before a jury on the amended complaint. At the close of the plaintiff's case the defendant made a motion for nonsuit, which was denied. After final argument to the jury the defendant moved for a directed verdict, which was granted, judgment being rendered on March 19, 1948, in favor of the defendant.
The motion for directed verdict was granted on the basis of noncompliance by the plaintiff with the claim statute of 1931, Deering's Gen.Laws, Stats. 1931, Act 5149, § 1, p. 2562, which requires: 'Whenever it is claimed that any person has been injured or any property damaged as a result of the dangerous or defective condition of any public street, highway, building park, grounds, works or property, * * * a verified claim for damages shall be presented in writing and filed with * * * the clerk or secretary of the legislative body [board of supervisors here] of the municipality, county, city and county, or school district, as the case may be, within ninety days after such accident has occurred. Such claim shall specify the name and address of the claimant, the date and place of the accident and the extent of the injuries or damages received.' The plaintiff had complied with this statute in all respects except that it filed its claim at the wrong place, with the controller rather than with the board of supervisors. The plaintiff was following the procedure set forth in section 87 of the San Francisco Charter providing for such claims, which is as follows: 'All claims for damages against the city and county must be presented to the controller within sixty days after the occurrence from which it is claimed the damages have arisen. Such claims must be verified by the oath of the claimant and must contain the name and address of the claimant, the date and place of the occurrence or injury from which damages are claimed, the nature and amount of said injuries or damages and the items making up said amount; otherwise there shall be no recovery on any such claim or by reason of the said occurrence for which damages are claimed.'
The claim statute of 1931 is generally regarded as having been passed to provide a procedure under which the Public Liability Act of 1923 might be enforced. Deering's Gen.Laws, 1937, Act 5619, § 2, p. 2630. The Act of 1923 makes a county, municipality or school district generally liable to be sued in tort action for damages to persons and property occasioned by the dangerous or defective condition of its public streets, buildings, grounds, works and property, when its governing or managing board, officer or person having authority to remedy the condition had knowledge or notice of the defective or dangerous condition and failed within a reasonable time to remedy it or to protect the public against it. Without the Public Liability Act of 1923 a municipality, for instance, would be liable only for damages arising from the use of an instrumentality in the performance of some proprietary enterprise, but it has been held that since that act was passed such municipality would be liable whether the damage arose from a proprietary or governmental instrumentality. With respect to the 1931 statute providing for procedure, it was stated by the court in Helbach v. City of Long Beach, 50 Cal.App.2d 242 at pages 244-245, 123 P.2d 62 at pages 64: 'That act is not amendatory of, dependent upon, or limited by, the Public Liability Act of 1923, supra * * *; it purports to declare the limitation applicable 'whenever' any person claims damages against a municipality arising out of the defective condition of 'any' public street, highway, building, etc. To uphold respondent's position we should, in effect, have to write into that law words of limitation and exception making it read, 'Only when it is claimed that any person had been injured * * * as a result of the dangerous or defective condition of any public street, highway, building, * * * or property not owned or operated or maintained in a proprietary capacity, a verified claim for damages shall be presented,' etc. We perceive no justification and have no authority for such judicial legislation. We must accept and apply the law as the legislature has written it.' See, also, Eastlick v. Los Angeles, 29 Cal.2d 661, 177 P.2d 558, 170 A.L.R. 225; Polk v. City of Los Angeles, 26 Cal.2d 519, 159 P.2d 931. The Helbach case was an action for damages for personal injuries resulting from a fall down an exterior stairway of a building operated by the defendant city in which a judgment for the plaintiff was reversed on the ground that she had not filed her claim within the 90-day period provided by the 1931 state statute, though she had filed within the 6-month period provided by the city charter. The case also holds that the 90-day limitation period was prescribed for claims even though they were based on common law liability, and that such provision must be complied with as long as it was a reasonable requirement. Ninety days is deemed reasonable as to time for filing. Young v. County of Ventura, 39 Cal.App.2d 732, 104 P.2d 102.
Though the plaintiff on appeal bases its claim on article 1, section 14, of the state Constitution, it must abide by the procedure set up by the Legislature for enforcing the right to sue. In Young v. County of Ventura, supra, the plaintiff was denied recovery for damage to his land caused by flood waters from a drainage ditch maintained by the county because he failed to file pursuant to the 1931 statute. The court there said, 39 Cal.App.2d at page 737, 104 P.2d at page 105: 'The constitution declares the right but does not provide the procedure by which the right may be enforced, and the legislature acted within its province in establishing the procedure necessary for the enforcement of the right. * * * By failing to comply with the procedure established by the legislature plaintiffs are deemed to have waived their right to enforce payment. [Citing cases.]' In Knight v. City of Los Angeles, 26, Cal.2d 764, 164 P.2d 779, it was held that substantial compliance with a claim provision, irrespective of whether based upon statute or charter, is sufficient. The ruling in that case, however, does not apply here. In that case the court was interested in the sufficiency of the specification of time for filing and not with respect to a failure to present a claim to the designated statutory body. In this instance, the proper legislative body, Stats.1931, p. 2475, is the board of supervisors, which is the only body possessing authority to allow the claim. Wilkes v. City, etc., of San Francisco, 44 Cal.App.2d 393, 112 P.2d 759. In Douglass v. City of Los Angeles, 5 Cal.2d 123, at page 133, 53 P.2d 353, 357, the court stated: 'The theory of the law requiring the filing of a claim before suit contemplates that if the claim be just and proper the municipal officer or body with which the claim is filed shall have power to approve payment without suit and make such approved claim a valid claim against the city without the necessity of the claimant reducing the demand to judgment. If the board has no such authority the filing of a claim with it would be futile and would thus fail to bring notice of the claim to the municipal authority having power to order the claim paid, without suit.' The Douglass case is noted with approval in the Knight case.
The plaintiff contends that the maintenance of sewer systems within a city is purely a local affair, citing many cases, and that therefore the means of recovery for damage from such operations are local problems. A distinction is drawn between the operation of such facilities, which may be local, and the enforcement of rights which accrue from damage caused by such operation. The latter is a matter of general state concern, governed by general state law. 'In Department of Water & Power [of City of Los Angeles] v. Inyo Chemical Co., 1940, 16 Cal.2d 744, at page 753, 108 P.2d 410, at page 416, the Supreme Court reiterated that rule, declaring 'It is undisputed that the matter of the liability of and payment by a city for its tort is not a municipal affair.' The reasons for applying this rule to cities in proprietary enterprises are fully as cogent as when they are engaged in exclusively governmental activities.' Helbach v. City of Long Beach, supra, 50 Cal.App.2d at pages 246-247, 123 P.2d at page 65. The plaintiff claims that this rule should be and is limited to situations where the general public is affected by the way the city performs the activity in question, such as the maintaining of streets, sidewalks and public buildings, rather than be applied to this situation which involves a sewer line extending only to a private building occupied by the plaintiff. The maintenance of a sewer does not affect the public generally, even though it runs only to a private building. Concern for the public health, so far as it may be affected by sewer pipes built under streets or highways, is not limited to a single area in a large city, though there may be interlocking pipes running into a private building; it extends not only to the employees in that building but also to the general public because of the possible spread of disease. 'Since the Legislature has power to make regulations covering matters of state concern, as it did in enacting the Public Liability Act of 1923, it also has power to regulate the manner in which the rights given by said act may be enforced.' Eastlick v. City of Los Angeles, supra, 29 Cal.2d at page 666, 177 P.2d at page 562, 170 A.L.R. 225. A charter provision may not operate to change the rule if the health problem is of statewide rather than local concern.
The last point raised by the plaintiff on this appeal is that of estoppel. In Powers Farms, Inc., v. Consolidated Irrigation District, 19 Cal.2d 123, at page 130, 119 P.2d 717, at page 722, the court said: 'It is well settled that written notice to or actual knowledge on the part of public officers does not constitute a substantial compliance with or satisfaction of a statutory requirement for a verified claim, or give rise to an estoppel to assert the defense. The long-established rule in this state is that the courts may allow no exceptions to the plain provisions of a claim statute under the guise of interpretation or construction. Compliance with this statute is mandatory and the requirement may not be waived. [Citing numerous cases.]' To the same effect is Bradshaw v. GlennColusa Irr. Dist., 87 Cal.App.2d 882, 883, 198 P.2d 106; also, Ghiozzi v. City of South San Francisco, 72 Cal.App.2d 472, 476, 164 P.2d 902; Farrell v. County of Placer, 23 Cal.2d 624, 145 P.2d 570, 153 A.L.R. 323, cited by plaintiff, may be distinguished. There the plaintiff won in an action based on the 1923 statute in spite of not having filed her claim within the 90-day period prescribed by the claim statute of 1931. The defendants were estopped to complain, having obtained a complete statement from plaintiff, who had relied on their advice not to employ counsel and to wait until she knew the extent of her injuries before filing a claim.
Since the procedure provided for by the 1931 claim statute, compliance with which was a condition precedent to a recovery, was not followed it is unnecessary to decide the question whether the plaintiff was entitled to damages on the merits.
There should be no hesitancy with respect to reaching the foregoing conclusion. I cannot approve a statement that the voters of the City and County of San Francisco by a charter provision or through a city official, or the charter itself misrepresented the facts or the law to the plaintiff, or that by the charter or statutory provisions the voters or the members of the Legislature misled the plaintiff into a trap for the unwary.
The judgment is affirmed.
BRAY, Justice (concurring).
I concur, although reluctantly, because I feel bound by the decisions heretofore written by the Supreme and Appellate Courts. If any relief is to be granted from the rigid and technical rules now prevailing as to the filing of claims for damages against governmental agencies, such relief must come either from the Legislature or the Supreme Court. An intermediate court, except on matters involving federal constitutional questions, is bound by the decisions of the Supreme Court. I agree with the dissenting opinion that the theory of the Farrell case should be broadened to meet a situation such as here, where the claimant is barred by a technicality from having his day in court. I cannot, however, go along with that opinion in holding that the mere amendment of a charter provision referring to 'all claims'--(there are claims, such as contract claims, which do not come within the statutory provision)--constitutes 'a trap.'
PETERS, Presiding Justice.
I dissent.
The present case dramatically illustrates the injustice and unfairness of the existing rules on the subject of filing claims against governmental agencies. The plaintiff has a claim against the city for serious damage to its property caused by the claimed negligence of the city in the maintenance of its sewage system. This claim is not based on the Public Liability Act of 1923. It is not merely a statutory right, but is one based upon and created by the Constitution itself. Art. 1, § 14 of the Constitution. The plaintiff's counsel carefully followed the procedure outlined in the City Charter--s 87 as amended in 1935. He filed the claim on the 57th day after the injury, and presented the same to the controller, as required by that section. The controller turned the claim over to the city attorney, who denied it well within the 90-day period required by the state statute, the claims act of 1931. This denial was on the merits, and not on the ground that the wrong person had been served. Then, after the 90 days, plaintiff is told that it cannot recover, not because the city was not negligent, not because the city is not liable, but solely because his counsel served the wrong city employee. There is no claim that the city was actually prejudiced by the claim being filed with the wrong officer--in fact, whether the claim was filed with the controller or clerk of the board of supervisors, it would have been referred to the city attorney--the very man to whom it was referred.
The claim statute, first passed in 1931, Stats. of 1931, Chap. 1168, p. 2476, and now contained in the Government Code, provides, in § 1981 of that code, that the claim 'shall be presented in writing and filed with * * * the clerk or secretary of the legislative body of the school district, county, or municipality'. Section 1982 provides for what the claim must contain, while § 2001 requires the city attorney to defend actions of this character brought against municipalities. The city charter--s 87--requires that 'All claims for damages against the city and county must be presented to the controller.' The city attorney, under the act of 1931, has to approve any compromise of such a claim Deering's Gen.Laws, Act 5149, § 4.
Prior to 1944, the cases had established the law to be that the state statute prevailed over city charter provisions, and had to be strictly complied with, not only as to the time limits and contents of the claim, but also as to the person upon whom service had to be made. Prior to that year, it had many times held that the city could not waive compliance with the claims statute, nor could it be estopped from pleading noncompliance with the statute, regardless of the harshness of the result. In 1944, the Supreme Court reappraised its former opinions, and in the well-reasoned case of Farrell v. County of Placer, 23 Cal.2d 624, 145 P.2d 570, 153 A.L.R. 323, held, in accordance with fundamental rules of fair play, that where representatives of the county had made representations to the plaintiff that induced her not to consult a lawyer and not to file a claim until after 90 days, the county was estopped from relying on noncompliance with the statute. That case has been followed in various factual situations. Tyra v. Board of Police, etc., Com'rs., 32 Cal.2d 666, 197 P.2d 710; County of Sacramento v. City of Sacramento, 75 Cal.App.2d 436, 171 P.2d 477; Benner v. Industrial Acc. Comm. 26 Cal.2d 346, 159 P.2d 24; Katz v. A. J. Ruhlman & Co., 69 Cal.App.2d 541, 159 P.2d 426. In Schulstad v. City and County of S. F., 74 Cal.App.2d 105, 168 P.2d 68, the rule of the Farrell case was applied to a situation where the claim was not filed within 90 days because the accident in which plaintiff was injured as a result of the negligence of the city had rendered the plaintiff mentally incapacitated for over 90 days. Related to these cases are those that hold that the 'substantial' rather than 'strict' compliance is all that is required. Knight v. City of Los Angeles, 26 Cal.2d 764, 160 P.2d 779; Perry v. City of San Diego, 80 Cal.App.2d 166, 181 P.2d 98.
The importance of these cases is that they establish the principles that the city, in a proper case, may be estopped from relying upon the defense of noncompliance with the statute, and that substantial compliance is all that is required. The old doctrine of strict and literal compliance with its attendant harsh and unfair results, has disappeared from the law.
The principles of these cases apply to the factual situation here involved. Let us look at the situation realistically. If the city attorney, or other representative of the city, had represented to the plaintiff that the claim should be filed with the controller, and the plaintiff, in reliance on such representation, had so filed the claim, there would be no doubt at all that an estoppel would exist. That is the precise rule of the Farrell case. Here the city has spoken and has misled the plaintiff. It has spoken in the most solemn and formal way a city may speak--by its charter. The charter provision unequivocally misstates the law and thus constitutes a trap for the unwary--a trap well designed to ensnare even the most experienced counsel, as this case well illustrates. It is worthy of mention that § 87 was amended in 1935, after the state claim statute had been passed in 1931. Thus, the city, with full knowledge of the 1931 statute, and with full knowledge that its charter provision contained a positive misstatement of the law, nevertheless deliberately retained the provision, and in fact amended it and the state legislature approved the amendment, after 1931. Certainly, if a misrepresentation by a city official creates an estoppel, a misrepresentation by the city itself in its basic charter should have the same effect. In the instant case, the city by this defense is seeking to gain an advantage over the plaintiff by claiming that the plaintiff acted improperly in doing exactly what the city told him to do. Such a defense should not be countenanced by a court of justice. Government should act in such a way as to be an example to its citizens, and by that I mean a good example and not a bad one. Here, in addition to the positive and direct misrepresentation in the charter, the city attorney, well within the 90 days, denied the claim, but in doing so did not elect to take advantage of the procedural defect, but denied the claim on its merits. While the city attorney was not under a duty to inform the plaintiff of the procedural defect, when he did speak without reference to the procedural defect he impliedly represented that the proper procedure had been followed, and, in my opinion, waived the defect.
I am aware that there are cases holding that the claim must be filed at the place designated in the state statute and not in the city charter, and that such rule will be strictly enforced no matter how harsh such result may be. Wilkes v. City, etc., of San Francisco, 44 Cal.App.2d 393, 112 P.2d 759,--an opinion which I signed; Douglass v. City of Los Angeles, 5 Cal.2d 123, 53 P.2d 353; Johnson v. City of Glendale, 12 Cal.App.2d 389, 55 P.2d 580. But these cases decided prior to the decision in the Farrell case and must be held to have been qualified thereby. It is also true that the precise point has recently been decided by a District Court of Appeal adversely to the position taken in this dissent--Ansell v. City of San Diego, Cal.App., 209 P.2d 618,--but it is also true that the Supreme Court has granted a hearing in that case. It should be mentioned that the appellate court did not discuss the theory here advanced. It is to be hoped that the Supreme Court, in the Ansell case, will reverse the cases above cited and announce a common sense fair rule of law that will lay at rest once and for all the cases that have placed pure formalism above substance. --------------- * Subsequent opinion 223 P.2d 231.