Stewart v. McCollister

• Decision Date: 15 May 1951
• Citation: 37 Cal.2d 203,231 P.2d 48
• Court: California Supreme Court
• Parties: STEWART et al. v. McCOLLISTER. L. A. 21682.

Page 48

231 P.2d 48

37 Cal.2d 203

STEWART et al. v. McCOLLISTER.

L. A. 21682.

Supreme Court of California, in Bank.

May 15, 1951.

Rehearing Denied June 14, 1951.

William N. Parker, Pasadena, for appellants.

Early, Maslach, Foran & Tyler, Robert E. Early and John B. Connolly, Los Angeles, for respondent.

SPENCE, Justice.

Plaintiffs appeal from a judgment entered in favor of defendant McCollister in an action brought to recover damages for personal injuries allegedly caused by defendant's negligent operation of his automobile.

The cause was not tried upon all issues but the judgment was entered after a trial by the court of a single issue raised by way of special defense in defendant McCollister's amended answer. Said defendant alleged therein that at the time of the accident, he was employed by the city of Los Angeles; that he was acting within the course of his employment with said city; and that plaintiff had not presented or filed any verified claim within 90 days after the accident occurred. Said defense was based upon the provisions of section 1981 of the Government Code. ¹ The trial court found in accordance with the facts alleged in said special defense and concluded that plaintiffs were therefore not entitled to a trial on the merits. Judgment in favor of defendant was entered accordingly.

In ruling upon said special defense, the trial judge indicated that he felt bound by the decision in Huffaker v. Decker, 77 Cal.App.2d 383, 175 P.2d 254. As will hereinafter appear, we are of the view that the Huffaker case is not controlling, and that both the wording of the statute and its historical background clearly indicate that the trial court erred in entering judgment in favor of defendant McCollister under the circumstances presented by the record. A brief statement of the pertinent facts will suffice to show that the construction of said section 1981 for which defendant contends, and which was adopted by the trial court, is untenable in theory and unjust in its operation.

The accident occurred in the city of Los Angeles on December 27, 1946. At that time defendant was driving his own 1936 Ford Sedan, which bore a Nevada license number, and concerning which automobile defendant later testified 'there was some mixup in the motor number but I was legally the owner.' Plaintiffs filed their complaint on March 5, 1947. It was the ordinary type of action against the individual defendant McCollister seeking to recover damages based upon the latter's common law liability for negligence. The city of Los Angeles was not made a party to the action and plaintiff made no claim in their complaint, or otherwise, that defendant McCollister was in the employ of any other person or entity. On March 29, 1947, defendant McDollister filed an answer in the ordinary form, which answer contained no hint of any alleged public employment of defendant or of any alleged defense relating to the failure to file a verified claim. On April 5, 1948, being more than a year after the filing of the complaint and more than 15 months after the happening of the accident, defendant filed an amended answer, which first disclosed his alleged special defense as above set forth. If plaintiffs were given any intimation prior to the filing of the amended answer, on April 5, 1948, that anyone claimed that defendant McCollister's 1936 Ford automobile, which was registered under a Nevada license number, was being used on the official business of the city of Los Angeles when the accident occurred on December 27, 1946, the record fails to disclose that fact. Nevertheless, said defendant seeks a construction of said section 1981 which would completely absolve him from his common law liability for negligence merely because defendant finally claimed and proved, by way of special defense, that at the time of the accident he was in the course of his employment with the city of Los Angeles in 'the heating and refrigeration division' of 'the Building and Safety Department,' using his own car, for which he was 'allotted seven cents a mile.'

Turning to the legislative history of said section 1981, it appears that its forerunner was an act passed in 1931. Stats.1931, p. 2476, as amended; Deering's General Laws, Act 5150. The 1931 act was passed as a companion measure to an act relating to the liability in damages of certain public agencies and requiring the filing of verified claims relating to such liability. Stats.1931, p. 2475, as amended; Deering's General Laws, Act 5149. Both acts were similarly phrased commencing with the words 'Whenever it is claimed that any person has been injured * * *.' Similar introductory words are found in the present section 1981. It seems clear that these and other provisions of the law specifically requiring the filing of verified claims for damages whether such provisions are found in our statutes or in charter provisions of cities or counties, were adopted in connection with various amendments which largely abolished the rule of immunity of public agencies from tort liability and created new statutory rights of action against such public agencies. It further seems clear that the primary purpose of the various provisions requiring the prompt filing of a verified claim was to put the public agency on notice, and to give it an early opportunity to investigate the merits of the claim, of which it otherwise might have no knowledge until after the chance for effective investigation had been lost by the lapse of time. It may be conceded that the legislature, either intentionally or by oversight, failed to include a provision in our general statutes requiring the filing of a verified claim as a prerequisite to the bringing of an action for damages against every public agency under all circumstances, Ansell v. City of San Diego, 35 Cal.2d 76, 216 P.2d 455 and it may be further conceded that the provisions of section 1981 of the Government Code, and its forerunner, had the effect of qualifying the common law right of action for negligence against a public employee under certain circumstances. Veriddo v. Renaud, 35 Cal.2d 263, 217 P.2d 647. But the question remains as to the extent to which such common law right of action was thereby qualified.

Both the legislative history and the plain wording of said section 1981 make it manifest that it was the intention of the legislature to qualify the common law right of action against the negligent person by requiring the filing of a verified claim only in the event that the injured person claims that he has been injured as the result of the negligence of a public employee occurring during the course of his public employment. The pertinent wording of the section is '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 * * *.' Both the condition expressed in this introductory clause and the conditional requirement expressed in the main clause for the filing a verified claim clearly relate solely to the claims of the injured person. Who, perchance, other than the injured person, ordinarily makes a claim of negligence against another, with or without a further claim relating to the course of employment? Certainly it is not the alleged negligent person himself. Yet defendant argues for a strained construction of the section and asks this court to declare that the section was intended to cover the situation where the public employee himself claims that his alleged negligence occurred in the course of his public employment without any such claim having been made by the injured person. In other words, defendant contends that it was intended by said section to place in the hands of the negligent employee the power to conceal the fact of his employment for the short period allowed for the filing of a verified claim, and then to render himself immune from his common law liability by alleging and proving that his alleged negligence occurred in the course of his public employment, and that no verified claim had been filed. We cannot ascribe to the legislature any such intention. If that construction should be held proper, then said section 1981 would provide a nefarious device in the hands of the defendant.

The several claims statutes and charter provisions prescribing varying requirements concerning the length of time for the filing of verified claims, the contents thereof, and the manner of filing or presentation may well be said to have become traps for the unwary. No additional traps should be added by an unwarranted construction of said section 1981. Perhaps the unfortunate person who lies in an unconscious state as a result of his injuries or who is under other disability for a long period of time, must be held to be deprived of his statutory cause of action against certain public agencies if his verified claim is not filed within the time prescribed. See Artukovich v. Astendorf, 21 Cal.2d 329, 131 P.2d 831, and cases cited. But it does not follow that the courts should torture the language of said section 1981 so as to deprive the injured person of his common law right of action against the negligent person when no claim is made by the injured person at any time that the alleged negligence occurred in the course of public employment.

It has been suggested that when the public employee alone is sued, the section would be meaningless if it is confined to the situation where plaintiff alleges the public employment in his complaint, as such allegation would be surplusage in such action. It will be noted that this is not the construction which we have placed upon the section. The fact which bears repetition is that plaintiffs here have never claimed, in their pleadings or otherwise, that defendant's negligence occurred in the course of any public employment. We hold that under these circumstances the provisions of the section...