This was an action for personal injury to the plaintiff alleged to have been caused by a limb falling on the plaintiff as he passed under a tree along Stonewall Street in the City of Jacksonville. It was alleged that the limb was caused to fall on the plaintiff by reason of it having been cut by the defendant from the tree upon which it grew while the defendant was engaged in the business of trimming limbs from trees to make room for its electric light wires used by it in its business of furnishing electric power and lights.

Demurrer was sustained to the original declaration and plaintiff then filed a second amended third count and a fourth count to his declaration. To these counts defendant filed separate demurrers. These demurrers were sustained and plaintiff thereupon abandoned all other counts to his declaration and refused to plead further. Final judgment was entered for the defendant.

The demurrer to the second amended third count of the declaration as grounds therefor alleged, in part:

"Said count shows upon its face that said alleged notice was not given in manner and form as required by law.

"Said count affirmatively shows that said notice fails to describe the place where said injuries were alleged to have occurred.

"Said count affirmatively shows that said notice fails to give the names and addresses of the witnesses to said injury."

The demurrer to the additional fourth count of the declaration, among other grounds, alleges:

"Said count states no cause of action."

"The allegations of said count fail to show that the defendant, City of Jacksonville, owed the plaintiff, James Crumbley, any duty in respect to his safety in the premises.

"Said count fails to allege that the relation of Master and servant existed between the plaintiff and the defendant.

"Said count fails to show that plaintiff was an agent of the defendant.

"Said count fails to show that plaintiff was an employee of the defendant.

"Said count fails to show that the plaintiff was the fellow servant of any agent or employee of the defendant.

It is contended that the provision of the City Charter of the City of Jacksonville, Sec. 1, chapter 11564 Acts of Special Session 1925, requiring in effect that no suit shall "be maintained against the City arising out of any other tortious action or action sounding in tort, unless it shall be made to appear that the damage alleged was attributable to the gross negligence of the City, and that written notice of such damage was, within thirty days after the receiving of the injury, given to the City Attorney with such reasonable specifications as to time and place and witnesses as would enable the City Officials to investigate the matter" is unconstitutional and, therefore, not binding and acts required thereunder are not necessary to be alleged as a condition precedent to the right of plaintiff to recover. Neither count of the declaration in this case alleged that the notice provided for in that portion of the Charter above referred to had been given.

In the case of High vs. City of Jacksonville, 51 Fla. 207, 40 So. 1032, this Court had a like provision of the Charter of the City of Jacksonville under consideration, the only material difference being that in the provision of the *Page 417 Charter then in force the notice was required to be given to the Mayor instead of to the City Attorney. In that case this Court, through Mr. Justice Hocker, said:

"We can discover no reason why the legislature might not, as they have done in section 3 of chapter 4872, provide that 'No suit shall be maintained against the city for damages, etc. unless written notice of such damage was within thirty days after receiving the injury given to the Mayor, with such reasonable specifications as to time and place as would enable the city officials to investigate the same.' Such a notice to a city is required in many States and so far as we can discover has been held to be a reasonable requirement intended to protect cities against fraudulent and unjust demands. 2 Modern Law of Municipal Corporations (by Smith) sec. 1310, pp. 1365, 1366; 20 Am. Eng. Ency. Law (2nd Ed.) 1234, and cases cited.

"Inasmuch as the declaration in the instant case contains no allegation that the notice to the Mayor of the City was given as required by the Statute, we are of opinion that no error was committed in sustaining the demurrer to the declaration and in entering final judgment for the City."

In Starlings vs. City of Tampa, 78 Fla. 606, 83 So. 625, in an opinion by Mr. Justice West, this Court sustained a like provision of the Charter of the City of Tampa.

The law as enunciated in these cases will be found to be generally recognized and followed in other jurisdictions.

The reason given by Mr. Justice Hocker in High vs. City of Jacksonville, supra, for sustaining the provision of the ordinance was that it appeared to be a reasonable requirement intended to protect cities against fraudulent and unjust demands. It may be added that such a provision is warranted because of the theory that cities in exercising proprietary rights, duties and functions may be assumed to exercise the same in connection with their governmental municipal functions for the benefit of the public within the municipality and that such a provision is needful to protect *Page 418 the public treasury of the municipality against bogus claims and waste.

The question as to what business principles should be applied by municipalities in the exercise of their proprietary functions is not before us for consideration and, therefore, whether the electric power plant of the City of Jacksonville is operated in such a manner as to evince that its primary object is to serve the public of that municipality as a lighting and power plant or to show a financial profit in its operation need not be discussed.

On authority of the opinions and judgments in the cases above cited, the judgment should be affirmed.