Bossert v. Stokes
| Citation | 3 Cal.Rptr. 884,179 Cal.App.2d 457 |
| Court | California Court of Appeals |
| Decision Date | 04 April 1960 |
| Parties | Adolph BOSSERT and Ella Bossert, husband and wife, plaintiffs and Appellants, v. Beulah May STOKES and James Stokes, coexecutors of the last will and testament of Charles Eugene Stokes, also known as C. E. Stokes, deceased, the estate of Charles Eugene Stokes, also known as C. E. Stokes, deceased, Beulah May Stokes, individually, and the County of Butte, Defendants and Respondents. Civ. 9728. |
Jack M. McPherson, Chico, for appellants.
Price & Morony, and Charles H. Andrews, Chico, for respondents.
On November 1, 1955, Charles Eugene Stokes, a member of the Board of Supervisors of Butte County, while operating a motor vehicle, of which he was the registered owner, was involved in a collision with a motor vehicle operated by Mrs. Ella Bossert. Stokes was killed and Mrs. Bossert was injured. On April 6, 1956, both Mr. and Mrs. Bossert filed their claims against the estate of Charles Eugene Stokes. On April 16, 1956, each of them filed with the county clerk a duly verified claim against the county. The claims were rejected.
On May 7, 1956, this action was commenced against Butte County, the estate of Charles Eugene Stokes and Beulah May Stokes individually. It was alleged in each count that at the time of the accident the decedent 'was a duly elected, qualified and acting supervisor of the County of Butte * * * and * * * at the time and place * * * as such supervisor he was an officer, agent, servant and employee of the County of Butte acting within the scope of his office and employment.' It was also alleged that the vehicle which the decedent was driving at the time of the accident was owned by him and his wife Beulah May Stokes.
The executors and Beulah May Stokes individually filed an answer in which they admitted the decedent was a supervisor of Butte County and that at the time he was acting within the scope of his employment. The answer alleged further that the vehicle which the decedent was driving had been acquired prior to his marriage to Beulah May Stokes and was his sole and separate property.
The county of Butte demurred to the complaint on the ground that no cause of action was stated because the complaint showed on its face that it was barred by the provisions of section 1981 of the Government Code (now section 801) because the claim was not filed within 90 days after the accident occurred. The demurrer was sustained without leave to amend, and judgment entered in favor of the county. No appeal was taken from this judgment so its propriety is not an issue in this appeal.
Thereafter, the executors were granted permission to amend their answer, and in their amended answer they set up the bar of sections 1980, 1981, 1982 and 2003 of the Government Code. They then made a motion for judgment on the pleadings. Plaintiffs sought permission to amend their complaint to eliminate the reference to the allegation that at the time of the accident the decedent was acting within the scope of his employment with the county. The reason given was that the allegation was inserted to assert a cause of action against the county, and since judgment had been given in favor of the county the allegation was superfluous in the causes of action against the other defendants. Beulah May Stokes made a motion for summary judgment. In the affidavit in support of the motion she asserted that the vehicle which her deceased husband had been driving was his sole and sparate property. The court granted the motion for judgment on the pleadings and the motion for summary judgment. It denied permission to file the amended complaint.
Plaintiffs have appealed from the judgment in favor of the executors of the estate of Charles Eugene Stokes, from the judgment entered in favor of Beulah May Stokes after her motion for summary judgment was granted, and from the order of the court denying them permission to file amendment to their complaint. The latter is a nonappealable order and the purported appeal therefrom must be dismissed.
The sole contention made in appellants' brief is that their action is not barred by the provisions of sections 1980, 1981, 1982 and 2003 of the Government Code.
Section 1981 provided: 'Whenever it is claimed that any person has been injured or any property damaged as a result of the negligence or carelessness of any public officer or employee occurring during the course of his service or employment * * *, within 90 days after the accident has occurred a verified claim for damages shall be presented in writing and filed with the officer or employee and the clerk * * * of the * * * county * * *.' This section applies to claims against public officers or employees when it is claimed that one has been injured as the result of the negligence of the officer or employee. Stewart v. McCollister, 37 Cal.2d 203, 231 P.2d 48. In the instant case it was pleaded that the injury occurred while the decedent was acting within the scope of his employment. Section 1981 would be applicable. No verified claim was filed either with the county or the executors of the estate within 90 days. Under such circumstances the failure to comply with the time provisions of section 1981 is fatal. Ward v. Jones, 39 Cal.2d 756, 249 P.2d 246; Huffaker v. Decker, 77 Cal.App.2d 383, 175 P.2d 254. Compliance with the section is a prerequisite to the maintenance of the action against the employee alone. California Law Revision Commission, The Presentation of Claims Against Public Entities, p. A-109. Under the facts of this case the court properly granted the motion for judgment on the pleaings because of the failure to allege compliance with section 1981 unless (1) the court abused its discretion in not permitting the amendment to eliminate the allegation of employment, or (2) unless the section was not applicable to actions where the alleged tortfeasor had died.
There was no abuse of discretion in not permitting the amendment to eliminate the allegation that the injury occurred while the decedent was acting within the course of his service or employment. The rule is that one may not avoid an allegation in a verified pleading which renders it vulnerable by later simply omitting the allegation without an adequate explanation. In Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713, at page 716, 128 P.2d 522, at page 524, 141 A.L.R. 1358, the court said: '* * * If any verified pleading contains an...
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...Inc., Granite Homes, Inc., and Granite Construction Services, LP on this separate and independent basis. (Bossert v. Stokes (1960) 179 Cal.App.2d 457, 462, 3 Cal.Rptr. 884.) The only Granite entity with which this appeal is concerned is Rancho 2004, LLC ("Rancho"). County moved for summary ......
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...California, Inc., Granite Homes, Inc., and Granite Construction Services, LP, on this separate and independent basis. (Bossert v. Stokes (1960) 179 Cal.App.2d 457, 462 .) The only Granite entity with which this appeal is concerned is Rancho 2004, LLC County moved for summary judgment on the......
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Chavez v. Sprague
...H-33: 250 P.2d 643.) A like rule applies whenever Government[209 Cal.App.2d 107] Code, section 2003, is applicable. (Bossert v. Stockes, 179 Cal.App.2d 457, 3 Cal.Rptr. 884.) 'It should be recognized that personnel claims procedures tend to operate as a trap for the unwary plaintiff at leas......
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