Eppstein v. City of Berkeley

STURTEVANT, J.

To the first amended complaint of the plaintiff the defendant interposed a demurrer and also filed a motion to strike. Later the trial court sustained the demurrer without leave to amend and ordered that the motion to strike be dropped from the calendar. From the judgment on sustaining of demurrer the plaintiff has appealed.

The plaintiff sued to recover damages for injuries sustained when she tripped and fell on an alleged defective sidewalk. In her complaint she alleged that the defendant is a municipal corporation; that it maintains among others a sidewalk over and upon the southerly edge of Rose Street in the city of Berkeley; that on the 3rd day of February, 1940, said sidewalk was in defective condition; that on said date

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plaintiff as a pedestrian was walking along and over said sidewalk, caught her foot in the broken portion, fell and was injured; that she suffered certain physical injuries and specified the same; that by reason of the injuries she was damaged in the sum of $2,500; that on the 29th day of April, 1940, she presented to the clerk of the defendant corporation a claim in writing, a copy of which she annexed to her complaint; that subsequent to said 29th day of April the defendant rejected said claim; and, continuing, she inserted the following allegations: “That subsequent to the 3rd day of February, 1940, and prior to the 29th day of April, 1940, plaintiff advised defendant orally of the circumstances set forth herein and her name and address; that thereupon and prior to the 29th day of April, 1940, a representative of the City of Berkeley came to the home of affiant and personally discussed with affiant the circumstances hereinabove set forth; that at all times mentioned in the complaint, and now, the residence of plaintiff and her whereabouts has been known to defendant, and plaintiff has been accessible to defendant, notwithstanding plaintiff failed and neglected to include her address in the claim attached hereto, and marked Exhibit ‘A,’ and defendant suffered no prejudice by reason of the omission thereof.” The claim contained no specification of address. To that complaint the defendant interposed a demurrer which was both general and special.

In the trial court the defendant contended, and in this court it contends, that the claim filed by the plaintiff with the clerk of the defendant corporation was insufficient because it did not specify the address of the claimant. In support of that contention the defendant claims that the plaintiff’s right to sue the defendant for the tort alleged is purely statutory. (Stats. 1923, p. 675, Deering’s Gen. Laws, 1937, Act 5619.) It also relies on the provisions of a statute enacted in 1931, page 2475, Deering’s Gen. Laws, 1937, Act 5149, regarding the maintenance of such actions. Section 1 of said statute is as follows: "Claim for damages suffered on public property. 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 of the municipality, county, city and county, or school district, as the case may be, within