Rembold v. City & County of San Francisco

GOODELL, J. This is an appeal from a judgment entered on a nonsuit.

The action is one for personal injuries sustained by appellant in a fall on a sidewalk in San Francisco.

The claim, required by law to be filed before suit, contains the statement that the accident occurred on 11. . . [796]that certain street known as 18th Avenue, particularly the east sidewalk thereof near the intersection of the east side of 16th Avenue and the north side of Geary Boulevard; . . (Emphasis added.)

The motion for nonsuit was not based on any failure to prove that the sidewalk was defective or that the authorities had no knowledge or notice of the defect, or any such matter of substance, but, as stated by counsel in presenting their motion, it was based “in particular in regard to the claim that is in evidence. We believe it is defective on the ground that it doesn’t sufficiently and adequately describe the place-where the accident occurred.”

Paragraph XIII of the complaint reads as follows: “That plaintiff duly filed her claim with the defendant City and County of San Francisco in the manner and within the time provided by law.”

In its answer the city made categorical denials of eight paragraphs of the complaint; two other paragraphs were denied for lack of information or belief, and three were wholly undenied. One of the three deals with fictitious defendants, another with public streets (which could not possibly be denied) and the third (par. XIII) is the one in question which presumably would have been denied had the city felt there was any valid basis for its denial.

Appellant contends that the failure to deny this allegation left no issue to be tried on that subject, and that it rendered erroneous the order granting the nonsuit based solely on the ground that the claim was insufficient or inadequate in its description of the place of the accident.

The rules on this subject are restated in Fuentes v. Tucker, 31 Cal.2d 1, 4-5 [187 P.2d 752], as follows: “One of the functions of pleadings is to limit the issues and narrow the proofs. If facts alleged in the complaint are not controverted by the answer, they are not in issue, and no evidence need be offered to prove their existence. (Travelers Ins. Co. v. Byers, 123 Cal.App. 473, 482 [11 P.2d 444]; Code Civ. Proc., §§ 462, 588, 1868, 1870, subds. (1), (15); see I Wigmore on Evidence [3d ed. 1940], p. 9, § 2.) Evidence which is not pertinent to the issues raised by the pleadings is immaterial, and it is error to allow the introduction of such evidence. [Citations.] It follows, therefore, if an issue has been removed from a case by an admission in the answer, that it is error to receive evidence which is material solely to the excluded matter.”