Allen v. Los Angeles City Bd. of Ed.

• Citation: 173 Cal.App.2d 126,343 P.2d 170
• Court: California Court of Appeals
• Decision Date: 19 August 1959
• Parties: Harden Warren ALLEN, Jr., a Minor, by Annie Ruth Allen, his guardian ad litem, Plaintiff and Appellant, v. LOS ANGELES CITY BOARD OF EDUCATION, J. C. Irby, et al., Defendants and Respondents. Civ. 23597.

Page 170

343 P.2d 170

173 Cal.App.2d 126

Harden Warren ALLEN, Jr., a Minor, by Annie Ruth Allen, his guardian ad litem, Plaintiff and Appellant, v. LOS ANGELES CITY BOARD OF EDUCATION, J. C. Irby, et al., Defendants and Respondents.

Civ. 23597.

District Court of Appeal, Second District, Division 3, California.

Aug. 19, 1959.

Vaughn & Morrow, Los Angeles, for appellant.

Veatch, Thomas & Carlson, and Henry F. Walker, Los Angeles, for respondents.

SHINN, Presiding Justice.

Appeal by the minor plaintiff from an adverse judgment in an action for damages against the Los Angeles City Board of Education and its employee J. C. Irby, in which defendants are charged with negligence. It was alleged in the complaint that the defendant Board of Education was and is a duly organized and existing school district; this allegation was denied in the answer of the defendants.

The questions on the present appeal are whether a claim was required to be filed by or on behalf of the minor Junior High School student for injuries sustained during a school recreational activity upon premises maintained by the Board and, if so, whether defendants were estopped to take advantage of the failure to file a claim. No claim was filed.

Section 1007 of the Education Code provides that a verified claim must be filed with the secretary or clerk of a School District within 90 days after the accident has occurred and it specifies what the claim shall contain. Other relevant provisions are found in sections 1980, 1981, 2003, 53050, 53051, 53052 and 53053 of the Government Code. It is sufficient to say that the requirement for filing claims applies to pupils in the public schools and to claims against School District or their employees. Minor claimants are not excepted.

The 12-year old plaintiff was engaged with many other pupils in a school recreational activity, under the supervision of employees of the Board, among them the defendant Irby. He was retrieving arrows from a bank when he was injured by a rock dislodged by another pupil.

Plaintiff's injuries were sustained March 3, 1956; the present action was commenced April 30, 1957.

At the trial, upon stipulation, evidence was received pertaining to the special defense that no claim had been filed, and to plaintiff's contentions that the filing of a claim was not required and, in the alternative, that facts alleged in the complaint, which he sought to prove, created an estoppel of defendants to rely upon his failure to file a claim. Trial of other issues was deferred. Findings were waived.

The judgment implies that the court found there was no estoppel. The witnesses were plaintiff's mother, Annie Ruth Allen, George R. Coan, an attorney, and Hugh A. Kelley, an investigator and adjuster for the insurance carrier of the School District. Kelley testified that he went to the Allen home about two weeks after the accident and told Mrs. Allen that he was investigating the accident and would re-contact her in a week or so; he left a blank medical report form with a return envelope; shortly afterwards Mrs. Allen called him to request another form, stating that a dog had chewed up the first one. He sent another form, which was not returned to him. About two weeks later he went again to the Allen home and left his card. Mrs. Allen called him on the following day and when he asked for the medical report she told him she had retained an attorney named Coan. He called Mr. Coan's office and left his name and number; a day or so thereafter Mr. Coan returned the call and told Kelley that he was representing the Allens, that he was very busy on another case and had not had time to go into the case in detail or obtain a list of the special damages but would obtain the same and call back. About June 20th Coan called Kelley, stated that he had a list of the special damages and asked how much would be offered in settlement; Kelley told him no claim had been filed and no settlement could be made. Coan asked 'Do you have to file a claim in this type of action' to which Kelley replied that such was his understanding.

Mrs. Allen testified that Mr. Kelley said in effect that 'they would be willing to pay the medical bill.' She said she thought it should be more than that. She also testified that Irby came to the Allen home several times and told Mr. and Mrs. Allen that he had contacted Mr. Kelley who told him that 'they were willing to pay, for me not to worry about it and he was pretty sure that they would.' Mrs. Allen also testified that she discussed the matter with Mr. Coan but did not employ him. Mr. Coan testified that he had a vague recollection of Mrs. Allen's discussing her son's accident but that he had no recollection of having done anything about it or discussing it with any representative of the insurer.

When questioned whether he had made the statement attributed to him by Irby, Kelley answered that he did not recall having made the statement. Kelley did, however, deny that he at any time told Mrs. Allen that the claim would be recognized or that anything would be paid; he told her an investigation was being made and if it showed fault on the part of the school they would be willing to negotiate; he did not tell her they would be willing to pay the medical bills nor did he discuss with her the filing of a claim. The failure of plaintiff to call Mr. Irby warranted the court in presuming that if he had been called his testimony with respect to his relaying a message from Kelley to Mrs. Allen would have been unfavorable to plaintiff. Gonzalez v. Southern Pacific Co., 157 Cal.App.2d 733, 321 P.2d 865.

We shall notice first plaintiff's contention that he was excused by reason of his minority from filing a claim. The case...