Kornahrens v. City & County of San Francisco

GOODELL, Acting P. J. Appellant sued for personal injuries alleged to have been sustained on June 7,1944, through the negligent operation of the streetcar of the municipal railway on which she was a passenger. The complaint shows that on August 29, 1944, a verified claim for damages was presented to the controller of the city. In its answer the city pleaded that appellant had failed to comply with the provisions of section 87 of the San Francisco charter requiring the presentation of such claims to the controller within 60 days after the occurrence, and when the case came on for trial the city pressed that point by moving for judgment on the pleadings. The motion was granted, judgment entered, and this appeal taken.

[198]The appellant’s sole contention is “that the provisions of a municipal charter relative to the time within which claims must he filed have no application in cases of tort arising out of a municipality’s exercise of proprietary functions.”

In Cathey v. City and County of San Francisco, 37 Cal.App.2d 575 [99 P.2d 1109], the plaintiff sued for an injury sustained while she was a passenger on the same municipal railway. Her claim was presented after the 60-day period had expired, which fact appeared on the face of the complaint. The city’s demurrer on that ground was sustained, and the judgment entered thereon was affirmed by this court.

Although the city makes it perfectly clear in its brief that it relies on that case, appellant in her reply brief makes no attempt to distinguish it. The Cathey case is directly in point, and the arguments now made by appellant are answered by that case and by the authorities which it cites.

One of the cases cited therein is Western Salt Co. v. City of San Diego, 181 Cal. 696 [186 P. 345], which arose from the collapse of the lower Otay dam operated by the city as a part of its municipal waterworks and in its proprietary capacity. The city charter contained a provision that all claims for damages against the city had to be presented within six months after the occurrence. The complaint failed to allege a compliance with that provision, and the city’s demurrer was sustained on that ground. An earlier case, Bancroft v. City of San Diego, 120 Cal. 432 [52 P. 712], had held that the plaintiff’s failure to present a claim within six months was fatal. The damages sought in the Bancroft case arose from the change of grade of a street, and the appellant in the Western Salt Company case sought to break the force of the earlier decision by contending “that the rule for the presentation of claims is different with reference to those claims incurred by the city in exercising its governmental powers and those incurred in the exercise of powers in private enterprises undertaken by the city.” The court said (p. 698) : “. . . we see no opportunity for any construction of the language with reference to presentation of claims based upon the fact that some of the powers of the city enumerated in the charter are governmental in character, and others authorize the establishment by the city of enterprises which partake of a private character. In either event the city is acting as such and the damages which accrue against it, under the law, are chargeable against the city.” This categorically answers the appellant’s argument herein that the charter provision has