Bartlett v. State

• Decision Date: 11 October 1956
• Court: California Court of Appeals Court of Appeals
• Parties: Cassie BARTLETT, Alfred Bartlett, Patricia Sue Bartlett, a minor, by her guardian ad litem, Alfred Bartlett, and Judy Ann Bartlett, a minor, by her guardian ad litem, Alfred Bartlett, Plaintiffs and Appellants, v. STATE of California, Frank Durkee, Director of Public Works, George C. McCoy, Paul Harding, W. L. Fahey, William Sedgwick, L. R. Smith, Ted Martin, Earl Hawkins, Does One, Two, Three and Four, B. R. Caldwell, Commissioner of the Department of the California Highway Patrol, Mark Hebblethwaite, Richard White, County of Los Angeles, Defendants. B. R. Caldwell, Commissioner of the Department of the California Highway Patrol, and Richard White, Respondents. Civ. 21542.

Page 985

301 P.2d 985

145 Cal.App.2d 50

Cassie BARTLETT, Alfred Bartlett, Patricia Sue Bartlett, a minor, by her guardian ad litem, Alfred Bartlett, and Judy Ann Bartlett, a minor, by her guardian ad litem, Alfred Bartlett, Plaintiffs and Appellants, v. STATE of California, Frank Durkee, Director of Public Works, George C. McCoy, Paul Harding, W. L. Fahey, William Sedgwick, L. R. Smith, Ted Martin, Earl Hawkins, Does One, Two, Three and Four, B. R. Caldwell, Commissioner of the Department of the California Highway Patrol, Mark Hebblethwaite, Richard White, County of Los Angeles, Defendants.

B. R. Caldwell, Commissioner of the Department of the California Highway Patrol, and Richard White, Respondents.

Civ. 21542.

District Court of Appeal, Second District, Division 2, California.

Oct. 11, 1956.

Wolford, Johnson & Pike, George Pike, El Monte, for appellants.

Edmund G. Brown, Atty. Gen., Delbert E. Wong, Deputy Atty. Gen., for respondents.

MOORE, Presiding Justice.

Appellants demand a reversal of a judgment of dismissal pursuant to an order sustaining a demurrer to the amended complaint without leave to amend as to respondents Caldwell and White. The pleading attempts to declare causes of action for personal injuries against departments of the State government and against Caldwell and White, respectively Commissioner of the California Highway Patrol and Captain of such Patrol in the Seventh Area. The injuries of appellants resulted from an intersectional collision of two automobiles of one of which they were occupants. Such vehicle was operated by appellant Alfred Bartlett along Fawcett Street, an east-west county road and public street, and onto Rosemead Boulevard, a north-south state highway. Appellants assert the liability of respondents by virtue of their failure to maintain a stop sign at Rosemead where it is entered by Fawcett; that by reason of the absence of such stop sign, the driver of the Bartlett car failed to discern the nature of the state highway; that on the day of the accident, December 22, 1953, and since about 1936, a stop sign had been provided for such intersection according to law and had been erected by or on behalf of Los Angeles County; that after it was placed, it was 'maintained and cared for and controlled by each and all of said persons and governmental bodies named defendants herein, at the westbound (as well as the eastbound) approaches of Fawcett to Rosemead Boulevard, so as to require vehicular traffic westbound upon Fawcett to stop at the edge of Rosemead on Fawcett before entering Rosemead Boulevard'; that at the time of the accident and for several prior years, Rosemead, at the Fawcett intersection and at others for miles north and south of Fawcett, was a major traffic artery and through highway with stop signs at the entrances of all such intersecting streets and highways; that during all such times and especially at night, the conditions at the intersection of Rosemead and Fawcett were such as to require, in the exercise of ordinary care, the maintenance of a stop sign at the westbound entrance of Fawcett onto Rosemead to give warning of the danger of traffic on Rosemead and render such entrance safe for passage of vehicular traffic along Fawcett into Rosemead; that the 'natural growth along Fawcett at the southeasterly corner of the intersection, obscuring the vision of a westbound driver to the customarily rapid approach of northbound traffic nearest said intersection' reasonably required the maintenance of a stop sign at Fawcett's entrance to Rosemead; 'that Fawcett at such intersection in the absence of such a stop sign was rendered thereby unsafe dangerous and defective.'

'IX

'That said stop sign at the westbound approach for westbound traffic on Fawcett, approaching Rosemead was the joint, or in the alternative several, jurisdiction and responsibility of the Department of Public Works, Division of Highways and the officers and employees herein, named thereof, and of the County of Los Angeles, and of the Department of the California Highway Patrol and the division officers and employees thereof named herein, with reference to and as to the replacement, maintenance, care, control and condition of said signs thereof. That each and all of the persons named herein and the governmental bodies had the duties to replace, maintain, inspect, care for, and control said two highways, their intersection and approaches, and the stop signs in place, and in a safe condition for their intended use, and furthermore had the duty with reference to the instruction, regulation and operation of the means and methods of carrying out such erection, maintenance, inspection, control and condition thereof, and with reference to the reporting of missing stop signs and of dangerous and defective highway by reason of the condition of the approaches and stop signs thereof, and with reference to the replacement and repair of said stop sign at said approaches.

'That the County of Los Angeles at all such times had the duty to maintain said Fawcett in a safe condition for its intended use, and to remedy the dangerous and defective condition of Fawcett by reason of its approach into Rosemead as herein alleged and to give warning of said dangerous and defective condition.

'That the Department of the California Highway Patrol on said date and for a long period of time theretofore had the duty, and customarily assumed the working practices and duty, of reporting missing stop signs or damaged stop signs, and either replacing same or requesting the Department of Public Works Division of Highways of California, or the County of Los Angeles, or a municipality under the particular circumstances to replace missing stop signs and otherwise to remedy and give warning to the public of the dangerous and defective conditions claimed by said missing stop sign.

'X

'On December 22, 1953, and for three months, or more prior thereto, the previously erected and maintained stop sign at the westbound approach for westbound traffic, along Fawcett to Rosemead was displaced and missing and not at all in position, so that no warning or notice to stop or warning of the dangers of the through highway, with its usual heavy rapid traffic, not otherwise ordinarily visible without stopping was given in any wise to drivers of traffic proceeding westerly along Fawcett approaching and entering into Rosemead. That on said date the plaintiffs were all occupants of an automobile being driven by the plaintiff Alfred Bartlett in a westerly direction along Fawcett, who was by the absence of the stop sign caused to enter said intersection into Rosemead and to come into collision with a northbound vehicle along Rosemead Boulevard, without stopping for said boulevard, and by reason of said collision each and all of the plaintiffs were seriously permanently and painfully injured and caused to suffer damages as herein alleged.

'That the absence of said stop sign and conditions rendering Fawcett and Rosemead dangerous and defective, as herein alleged, were open and obvious and easily known to the persons complained of and the County of Los Angeles from any routine inspection of the intersection and of stop signs, which routine inspections were regularly carried out by and under the authority of the officers and employees complained of and the County of Los Angeles; and the exercise of ordinary care in the inspection of said stop signs and of the intersection would have caused actual knowledge of said dangerous and defective condition of the property.

'That in fact at the El Monte offices of the California Highway Patrol where Captain Richard White was located, there was a displaced and missing stop sign for a period of several weeks prior to the collision, which in reasonable probability was the one previously in place at said intersection.

* * *

* * *

'That each and all of the officers and employees herein named as defendants had notice, either actual or constructive, of the defective and of the dangerous condition of said public property and each and all of it herein described, and had the authority and the duty to remedy such condition at the expense of the political and governmental body responsible therefor, and funds for the purpose were immediately available to each and all of such persons, and within a reasonable time after receiving such notice, and being able to remedy such condition, they failed so to do, and furthermore failed to take reasonable steps to give adequate warning of such dangerous and defective condition of the stop sign and the public highways and approaches thereto, and of the public property herein described.'

From the foregoing it should be patent that no liability on the part of respondents exists in favor of appellants. If such be true, the court below properly sustained the demurrer without leave to amend. Bauer v. County of Ventura, 45 Cal.2d 276, 291, 289 P.2d 1; Routh v. Quinn, 20 Cal.2d 488, 493, 127 P.2d 1, 149 A.L.R. 215; Saint v. Saint, 120 Cal.App. 15, 23, 7 P.2d 374.

The determination of the point raised by the appeal appears to rest largely with the interpretation of section 1953 ^* of the Government Code which appears on the margin hereof. Because that section had its genesis in the Statutes of 1919, chapter 360, section 1 (which chapter was a reenactment of section 1, chapter 593 of the Statutes of 1911) the decisions construing the earlier statutes are persuasive here. The Act of 1911 was not enacted to create a liability of public officers for negligence in the performance of their duties beyond existing liability. Ham v. County of Los Angeles, 46 Cal.App. 148, 164, 189 P. 462. Inasmuch as respondents' liability is restricted by the limitations prescribed by section 1953, a valid pleading against such officers requires strict compliance therewith. Shannon v. Fleishhacker, 116 Cal.App. 258, 261-262, 2 P.2d 835.

Because the amended complaint does not definitely show that either r...