Girard v. Monrovia City School Dist.
| Decision Date | 08 December 1953 |
| Citation | 264 P.2d 115,121 Cal.App.2d 737 |
| Parties | GIRARD et al. v. MONROVIA CITY SCHOOL DIST. et al. Civ. 19664. |
| Court | California Court of Appeals Court of Appeals |
Porter C. Blackburn and Earle William Burke, Burbank, for appellants.
Hunter & Liljestrom, and Richard M. Gilliland, Los Angeles, for respondent Monrovia City School Dist.
Robert A. Cushman, Los Angeles, for respondent Azusa City School Dist.
Gerald Girard, aged nine, a pupil at Monroe Elementary School in the Monrovia City School District, was struck and instantly killed by automobile operated by defendant Delores L. Hall. At the time he was struck Gerald was returning home from school and was in a marked pedestrian crosswalk on Huntington Drive. His parents brought an action for wrongful death against the driver of the automobile and also against Monrovia City School District and Azusa City School District. Each of the defendant school districts filed a demurrer to the complaint, and each demurrer was sustained without leave to amend. Two judgments were thereupon entered, one, on October 16, 1952, in favor of Azusa City School District, and one on October 22, 1952, in favor of Monrovia City School District. On December 8, 1952, plaintiffs filed a notice of appeal 'from that certain judgment in favor of the above named defendants, and against plaintiffs, made and entered in the above entitled Court on the 16th day of October, 1952, in Judgment Book 2446, Page 302.' The judgment in favor of Monrovia City School District was entered in Judgment Book 2450, Page 72. The latter school district has moved to dismiss the appeal as to it, upon the ground that no appeal was taken from the judgment in its favor. The notice of appeal refers to the judgment 'in favor of the above-named defendants'. The notice was addressed to and served upon both school districts. The notice to the clerk to prepare the transcript on appeal stated that plaintiffs had appealed from 'that certain judgment entered in favor of defendants Monrovia City School District, and Azusa City School District.' Counsel for appellants states in his affidavit:
Notices of appeal are not strictly construed, and an appeal will not be dismissed because of a misdescription of the judgment or order to which it relates, unless it appears that the respondent has been misled by such misdescription. Harrelson v. Miller & Lux, 182 Cal. 408, 414, 188 P. 800; Balkins v. Norrby, 61 Cal.App.2d 413, 416, 142 P.2d 958; Kellett v. Marvel, 6 Cal.2d 464, 471, 58 P.2d 649; Adams v. Talbott, 20 Cal.2d 415, 417, 126 P.2d 347; In re Estate of Smead, 215 Cal. 439, 441, 10 P.2d 462. The respondent Monrovia City School District was not misled by the uncertainty in the notice of appeal. In June, 1953, the district procured a stipulation extending the time within which to file its brief. The brief was filed on September 11, 1953, the same day on which the motion to dismiss was filed.
It is the policy of the law that every case should be heard on its merits. Here it is perfectly apparent from the notice of appeal that the appellant sought review of the order of the superior court sustaining the respective demurrers of the two school districts and properly sought to do so by appealing from the judgment of dismissal. His only error was in assuming that a single judgment of dismissal had been entered, when in fact a separate judgment had been entered as to each school district. Respondent Monrovia City School District was not misled, nor has it suffered any prejudice. It is clear that in the circumstances presented the motion to dismiss should be denied. See Holden v. California Emp., etc., Comm., 101 Cal.App.2d 427, 430, 431, 255 P.2d 634; and Airline Transport Carriers v. Batchelor, 102 Cal.App.2d 241, 247, 248, 227 P.2d 480.
Turning to the merits of the cause, the theory upon which plaintiffs sought to recover is that a proximate cause of the death of their child was the asserted negligence of the two districts in advising and permitting the child to attend Monroe Elementary School in the City of Monrovia, whereas he should have been sent to Santa Fe Elementary School; that in traveling to and from Monroe Elementary School, the child was obliged to cross Huntington Drive, a heavily traveled street. Recovery is also sought upon the ground that Monrovia School District was negligent in not providing the child with transportation from school to his home or for his safe conduct across Huntington Drive.
In substance, the allegations of the complaint are that Gerald Girard, aged nine, was a registered pupil at Slauson Elementary School in the Azusa City School District; that two employees of that district were advised by Gerald's brother that the family had moved to 1304 Alamitos Street in Monrovia, and said employees were requested by the brother to have Garald and his school records transferred to the proper elementary school in Monrovia; that said employees negligently advised the brother that Monroe Elementary School in Monrovia was the proper school for Garald to attend; but that in truth said employees knew or should have known by use of ordinary care that a child who resided at 1304 Alamitos Street was not entitled to enroll at Monroe Elementary School, but should enroll and attend Santa Fe Elementary School. Further, it is alleged that in reliance upon the information received, the parents presented Garald for admission to Monroe Elementary School and the employees, principal and teachers of said school negligently permitted Gerald to register and attend, knowing that a pupil residing at Garald's address should attend Santa Fe Elementary School. That in permitting such enrollment and attendance, the Monrovia City School District and its said employees acted negligently and in violation of section 1503 of the Education Code.
The complaint continues by charging that the defendants and their employees knew or should have known that Huntington Drive was a major and heavily traveled thoroughfare and dangerous for a child of nine to cross; that 'in keeping with the law and custom,' defendant Monrovia City School District 'purported' to provide motor transportation for pupils crossing Huntington Drive, and did provide transportation from Gerald's home to the school, but negligently failed to provide transportation from school to home and negligently failed to provide protection or a safe means for Garald to cross Huntington Drive on his way home.
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