I concur in the results. I think the trial court in its opinion struck the crux of the matter. Sec. 15-7-76, R.S.U. 1933, provides that
"every claim * * * for damages or injury, alleged to have been caused by the defective, unsafe, dangerous or obstructed condition of any street, alley, crosswalk, sidewalk, culvert orbridge," etc., "shall within thirty days after the happening of such injury or damage be presented," etc. (Italics added.)
Further down the same section specified that
"no action shall be maintained against any city or town for damages or injury to person or property," etc. (Italics added.)
These qualifying words "to person or property" go to the entire class of actions covered by the first part of the section in reference to which claims must be filed. The first part should therefore be read as if it were worded, "Every claim * * * for damages or injuries [to person or property] alleged to have been caused," etc. The two parts of the section must synchronize. In spite of the New York cases to the contrary I think it follows therefore that the *Page 370 section did not touch actions for death due to negligence. Sec. 15-7-76 must necessarily be considered as lifting the immunity from suit for negligence occurring in the performance of functions done in the city's governmental capacity because it would be an absurdity to require notice as a condition of an action if it had not been intended to permit the action. But the lifting of the immunity can go only to the cases in regard to which an action was permitted, that is, to those involving damage or injury to person or property. An action for death by negligence is not an injury to person or property as is meant by those terms. Lord Campbell's act gave a right of action to the heirs for damages suffered by the negligently caused death of the ancestor. It was not a damage to person or property. In consequence the immunity was never lifted for actions for death caused by negligence. The case of Brown v. Salt Lake City,33 Utah 222, 93 P. 570, 573, 14 L.R.A., N.S., 619, 126 Am. St. Rep. 828, 14 Ann. Cas. 1004, really dealt with a death caused by negligence incident to the city's functioning in its proprietary capacity. All that was said in that case about the statute not requiring a presentation of a claim for damages due to death because of the fact that death might occur after the time to file claims had passed because the "time runs from the date of the injury, and not from the time the full consequences resulting therefrom are known," was entirely beside the point and unnecessary. Nor do I think that a discussion of the case ofDahl v. Salt Lake City, 45 Utah 544, 147 P. 622, as it relates to the Brown case would be profitable. The two cases have apparently lent confusion in the interpretation of Sec. 15-7-76, but that confusion on the views herein expressed does not touch us.
I have heretofore expressed myself in regard to the nebulous line which separates so-called proprietary and governmental functions — a line largely without logic or basis and doubtful morality in a period of growing governmental functions. Husband v. Salt Lake City, 92 Utah 449, 69 P.2d 491; Niblock v. SaltLake City, 100 Utah 573, 111 P.2d 800. *Page 371 However, as stated in the latter case it seems a matter for legislative rather than judicial remedy.