J.—From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover damages for personal injuries defendant appeals.

These are the conceded facts:

At the close of plaintiff’s case defendant made a motion for a nonsuit, which did not specify among its grounds the failure of plaintiff to prove that she had filed a claim for damages as provided in section 1, Act 5149, supra. This motion was denied and thereafter the trial court entered a judgment in favor of plaintiff and made among others the following finding:

These are the questions presented for determination:

The first question must be answered in the negative, as plaintiff concedes the absence of any proof in the record to show compliance with the provisions of section 1, Act 5149, supra.

The second question must likewise be answered in the negative. The judgment in the instant case was on the merits and not as the result of the granting of a motion for a nonsuit. It is not a prerequisite to the urging on appeal insufficiency of the evidence to sustain a material finding of the trial court that there be a motion for a nonsuit specifying the insufficiency of the evidence on a material issue as a ground therefor, and, if a motion for a nonsuit is made which does not include the insufficiency of the evidence on a material issue as one of the grounds of the motion, its denial does not preclude the aggrieved party from urging before an appellate court the total failure of evidence to sustain a material finding of the trial court.

Hence, since it was an essential part of plaintiff’s cause of action to allege and prove compliance with the requirements of section 1, Act 5149, supra, and there was no evidence to sustain the trial court’s finding No. Ill upon this subject, judgment should have been in favor of defendant. (Winter v. City of Niagara Falls, 100 N. Y. 198 [ 82 N. E. 1101, 1102 , 123 Am. St. Rep. 540 , 13 Ann. Cas. 486] ; Cooper v. County of Butte, 17 Cal. App. (2d) 43, 49, 50 [ 61 Pac. (2d) 516 ] ; Douglass v. City of Los Angeles, 5 Cal. (2d) 123, 128 [ 53 Pac. (2d) 353 ].)

For the foregoing reasons the judgment is reversed.

Wood, Acting P. J., concurred.