[204]CARTER, J., Dissenting. — I dissent.
The majority opinion is contrary to every concept of fairness and good faith. If a similar situation were presented in which an individual or private entity rather than a municipal corporation were involved it would be unhesitatingly held that there had been a substantial compliance, or that the defendant was estopped to assert the insufficiency of the claim, or that there was a waiver of the alleged defect therein. Surely a government agency should be at least as much bound, if not more, than an individual by the requirements of equity, justice and fair dealing. Indeed, such agency should be held to a higher standard of fairness as a matter of example for others. When this case was before the District Court of Appeal, Second Appellate District, Division Two, Mr. Justice McComb of that court wrote a very able dissenting opinion which I am adopting as a part of my dissenting opinion in this case. He said:
“There are two rules supported by respectable authority which in my view are controlling in the present case.
“First: Substantial compliance with the requirements of section 1 of Act 5149, Deering’s General Laws, 1931, is sufficient to permit an injured person to maintain an action against a municipality. (Kelso v. Board of Education, 42 Cal. App. (2d) 415, 422 [109 Pac. (2d) 29]; Sandstoe v. Atchison, T. & S. F. Ry. Co., 28 Cal. App. (2d) 215, 220 [82 Pac. (2d) 216].)
“Second: When a claim has been filed with a municipality, full investigation made thereof and the claim rejected for some reason not connected with the form of notice or its contents, the notice has performed its function and defects therein can no longer be relied upon to prevent a recovery. (Bowles v. City of Richmond, 147 Va. 720 [129 S. E. 489, 133 S. E. 593, 595]; Bowman v. Ogden City, 33 Utah 196 [93 Pac. 561, 564]; Nevola v. City of Ironwood, 232 Mich. 316 [205 N. W. 93, 94, 50 A. L. R. 1189]; Greenberg v. City of Waterbury, 117 Conn. 67 [167 Atl. 83, 84]; Lindley v. City of Detroit, 138 Mich. 8 [90 N. W. 665]; Hunter v. Village of Durand, 137 Mich. 53 [100 N. W. 191, 192].)
“Applying the foregoing rules to the facts of the present case, we find, as stated by this court in Sandstoe v. Atchison, T. & S. F. Ry. Co., supra, at page 223, that ‘the purpose of filing a claim against the city is to enable city officials to make [205]proper investigation concerning the merits of the claim and to settle it without the expense of a lawsuit if settlement should be shown to be proper.’ That suc'h is the purpose underlying the requirement is clear. (Uttley v. City of Santa Ana, 136 Cal. App. 23 [28 Pac. (2d) 377]; Wagner v. City of Seattle, 84 Wash. 275 [146 Pac. 621, Ann. Cas. 1916E, 720].)
“From the statements contained in the letter in the present case from respondent’s clerk notifying plaintiff of denial of her claim, it is apparent that respondent was not misled by failure of the claim to specify the place where the accident took place. The letter describes the precise place where the accident occurred and refers to a ‘complete investigation’ of the matter by the city attorney. The purpose of the statute in requiring the filing of a claim was therefore in fact accomplished, although the claim itself was defective. There is no evidence of any intention on the part of plaintiff to mislead defendant by filing a defective claim. So far as the record discloses, plaintiff filed such a claim in a bona fide attempt to comply with the statutory requirements. Under such circumstances where, as here, there is no evidence that such claim did in fact mislead the municipality, it will be deemed sufficient to enable plaintiff to maintain an action against the city following the rejection of such claim. (Kelso v. Board of Education, supra; Sandstoe v. Atchison, T. & S. E. Ry. Co., supra.)
“The principle underlying the rule is well stated in Decker v. City of Seattle, 80 Wash. 137 [141 Pac. 338, at page 339], where it is said (quoting from Hammock v. Tacoma, 40 Wash. 539 [82 Pac. 893]) :
“ ‘ ... where there has been a bona fide effort to comply with the statute, and there has been no intention to mislead, it is a sound and just rule which opens the door of the court to an inquiry whether the notice did in fact mislead. If it did not in fact mislead, but if its deficiencies or mistakes were helped out by other information given to the proper officers, or by other knowledge on their [the city’s] part, no matter how acquired, then it would turn the statute into a mere trap for the ignorant and unskillful, to deprive them of a right of action because of failing to do something which caused the municipality no injury and put it to no disadvantage. ’
[206]“In addition, the case clearly falls within provisions of the second rule above stated, to wit, that, where the municipality has, as in the present case, received a defective claim, made full investigation of the accident, and then rejected it for reasons other than a defect in the form of notice or its contents, the city is estopped from relying upon a defect in the notice of claim to prevent recovery in an action subsequently brought. (See numerous cases above cited.)
“For the foregoing reasons in my opinion the judgment of the trial court should be reversed.”
In addition to the cases cited in Mr. Justice McComb’s dissenting opinion, see: Barton v. City of Seattle, 114 Wash. 331 [194 Pac. 961]; Cawthon v. City of Houston, (Tex. Com. App.) 231 S. W. 701; Draper v. Village of Springwells, 235 Mich. 168 [209 N. W. 150]; Naze v. Town of Hudson, 250 Mass. 368 [145 N. E. 468].
It has been repeatedly declared by the courts of this state that the purpose, aim and object of the claim statute here involved is twofold, namely, to enable the city to investigate the accident and conditions causing it, and to compromise or pay the claim if it deems it expedient, thus avoiding the expense of litigation. No other purposes have ever been mentioned. . In the instant ease the purposes of the statute have been wholly satisfied and fulfilled. There can be and is no dispute on that subject. The city made a complete and thorough investigation of the accident and gave consideration to the claim and rejected it. There is not a vestige of any detriment or disadvantage having been suffered by the city. There is not a single act or thing the city could or would have done had the claim been more complete. On the other hand, the plaintiff under the majority opinion suffers great and irreparable damage. She is absolutely foreclosed from having a determination of her case on the merits. What purpose or reason can be given to sustain the conclusion reached in the majority opinion ? I submit that there is nothing but the most specious argument based upon a fine-spun technicality. It has always been my opinion that all the law whether enacted by the Legislature, or as interpreted by the courts, is based upon reasonableness and justice. Indeed, that principle has been declared by the courts in a legion of cases. One of the ramifications of that principle is that form and technicality shall not render the courts [207]impotent to rectify wrongs even when it is necessary to look through a maze of technicalities to protect substantive rights.
As I have stated, there is a substantial compliance with the statute in this ease and the city is estopped from asserting that the claim is defective. This is not conferring a power upon the city which it does not possess, or making lawful ultra vires acts. The city has the power and the duty to pay just claims for injuries due to dangerous or defective condition of its property. It has the power and duty to pass upon such claims. It inescapably follows that it has the power, inherent and implicit in those general powers, to pass directly or indirectly, upon the sufficiency of those claims. True, the statute states that the filing of a claim is a condition precedent to the city’s liability, but even if it be said that when no claim has been filed the city has no power to admit liability and pay damages for the injury suffered, yet there is a vast difference between no claim and a defective claim. If a claim has been filed, that condition prerequisite to liability has been satisfied, the dormant power of the city to act has been activated and brought into existence. Henceforward, it has power to determine the sufficiency of that claim. That determination may be evidenced by express action by the city on that specific subject, or by conduct of the city or its officials which constitutes an implied finding or determination that the claim is in proper form. Such implied determination may arise from the application of the doctrines of either waiver or estoppel. An analogous situation might be imagined in the instance of a court which has general jurisdiction or power to adjudicate tort actions. If no complaint is filed, it has no power on its own initiative to grant or refuse recovery to the injured person. But once a complaint has been filed its general power enables it to pass upon the sufficiency of that claim for relief. Merely because the claim was defective in that it lacked some indispensable element would not mean that the court was ousted from jurisdiction, or deprived of its power to pass upon the sufficiency of the claim.
In the case at bar it is conceded that plaintiff filed a claim with the proper official of the city of Los Angeles within sixty days after she received the injury complained of. This claim was fully investigated by the city and rejected upon [208]the advice of the city attorney. The notice of rejection of said claim is as follows:
“Greetings: At the meeting of the Council held this day, the following report of the Finance Committee, was adopted: ‘In the matter of the claim of Mary E. Hall, in the amount of $8,000.00, for damages because of personal injuries alleged to have been received when she slipped on a muddy sidewalk at the corner of Union Drive and Sixth Street, on September 14, 1938: The City Attorney reports that after making a complete investigation of this matter, he is of the opinion that there is no municipal liability involved, and recommends that the claim be denied. We recommend, in view of the City Attorney’s report, that said claim be denied and the matter filed’.”
It will be observed from the foregoing notice of rejection that the place where the accident occurred was known to the city officials and that the claim was rejected upon the advice of the city attorney “that there is no municipal liability involved.” The form or substance of the ,claim was not questioned by the city officials until after this action was commenced.
To hold, under the circumstances of this case, that plaintiff is denied recovery because she failed to file a sufficient claim is, in my opinion, substituting form for substance and technicality for common sense. Such result was obviously never intended by the framers of the statutory provision here involved.
In my opinion the judgment should be reversed.
Houser, J., concurred in the foregoing conclusion.