Ward v. Jones

• Decision Date: 09 July 1951
• Citation: Ward v. Jones, 234 P.2d 98 (Cal. App. 1951)
• Court: California Court of Appeals
• Parties: WARD et al. v. JONES et al. Civ. 17976.

Page 98

234 P.2d 98

WARD et al. v. JONES et al.

Civ. 17976.

District Court of Appeal, Second District, Division 1, California.

July 9, 1951.

Hearing Granted Sept. 7, 1951. ^*

Richard L. Mayers, Lawrence William Steinberg, Beverly Hills, for appellants.

Ray L. Chesebro, City Atty. of City of Los Angeles, Gilmore Tillman, Chief Asst. City Atty. for Water and Power, and Wendell Mackay, Deputy City Atty., all of Los Angeles, for respondents.

WHITE, Presiding Justice.

A general demurrer to their amended complaint (hereinafter referred to as the complaint) having been sustained without leave to amend, plaintiffs have appealed from the ensuing judgment of dismissal. The action is one for wrongful death brought by the widow and minor children of Joseph T. Ward. The decedent met his death by coming in contact with a high-tension electric transmission line while engaged as a painter in painting a tower at an electrical substation of the Department of Water and Power of the City of Los Angeles. The decedent was an employee of the Department and the defendants were fellow employees having varying degrees of supervision over or connection with the work of painting the tower. The complaint alleged, in substance, that it was extremely dangerous for a painter to work on the tower in the vicinity of the high-voltage wires, and that reasonable care required that the current be turned off while such work went on; that there be two competent electricians present at all times; that no painters, nor any equipment except of a nonconducting quality be permitted within ten feet of the wires while they were energized; that safety belts be used. It was charged that the defendants, in violation, neglect and disregard of their duties as officers and employees of the Department, carelessly and negligently failed to take such precautions; further that defendants O'Connor and Williams, as foreman and assistant foreman of the painting crew, caused an electrical mechanic to be removed from the job in order to expedite the work by omitting the precautions insisted upon by the electrical mechanic and thereafter, 'in willful, negligent and reckless disregard of the lives and limbs of members of said crew, adopted the practice of working and did cause his painting crew to work in dangerous proximity to said high tension wires,' and 'to the knowledge and with the consent and authority and pursuant to the directions of' the other defendants.

The demurrer was based upon the sole ground that the complaint failed to allege that the plaintiffs presented a verified claim to the defendants within ninety days from the date of the accident. The complaint in this connection contained the following allegations 'That on October 8, 1948, plaintiff Aileen Mary Ward filed a written verified claim for damages with the City of Los Angeles, State of California by filing same with Walter Peterson, City Clerk of said City; that said claim for damages specified the names and addresses of the claimants, the nature of the damages and injuries, when and where the injuries occurred, and a description of the manner and nature of the accident and injuries.'

Section 1981 of the Government Code reads as follows: '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 or as a result of the dangerous or defective condition of any public property, alleged to be due to the negligence or carelessness of any officer or employee, 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 or secretary of the legislative body of the school district, county, or municipality, as the case may be. In the case of a State officer the claim shall be filed with the officer and the Governor.'

Appellants present three reasons why, they assert, the causes of action here involved do not come within the requirements of the aforesaid section 1981: 1. That an action for wrongful death is not included within the wording of the section, which refers only to situations where 'it is claimed that any person has been injured or any property damaged'; 2. That the section by its terms does not include cases involving wilful misconduct, appellants here contending that they have set forth a cause of action for wilful misconduct rather than mere negligence; and 3. That the statute should not be construed to include an action by an injured employee against a fellow employee.

As a fourth ground of reversal, appellants assert that even though section 1981 should be held applicable in the instant action, their filing of a claim with the city clerk of the City of Los Angeles should be held to constitute substantial compliance.

The majority view of the courts of other jurisdictions as reflected in cases we consider as exceptionally well reasoned, is that statutes containing language similar to that involved in the section here under consideration do not apply to an action for wrongful death. The language of the Supreme Court of Missouri in Glasgow v. City of St. Joseph, 1944, 353 Mo. 740, 748, 184 S.W.2d 412, 416, is illustrative: 'Unless actions for death by wrongful act, are explicitly included, it is generally held that like statutory provisions do not apply to an action for wrongful death. This is especially so where, as in Missouri' (and as in California), 'the wrongful death action is considered a new cause of action, first springing into existence at the time of death.' Citing 25 C.J.S., Death, § 30, sub. sec. a, p. 1102; 38 Am.Jur., p. 392, Sec. 688; 6 McQuillin, Municipal Corporations, p. 1285, Sec. 2890, n. 12; Annotation, 64 A.L.R. 1059.

The case of Spangler's Administrator v. City of Middlesboro, 1945, 301 Ky. 237, 191 S.W.2d 414, 415, involved a statute providing that 'No action shall be maintained against any city * * * unless notice * * * be filed within ninety days of the occurrence for which damage is claimed * * *.' The court there pointed out that where an injured party dies, the usual necessity for prompt examination to determine exact extent of injuries is obviated and the coroner's inquest provides the city with ample notice for the purpose of eliminating for the future the dangerous condition which caused the death. But further, as pointed out by the Kentucky court, the notice is required to be filed within ninety days of the 'occurrence' for which damages are claimed. (The California statute uses the word 'accident'. Clearly so far as an action for personal injuries is concerned, the words 'occurrence' and 'accident' mean the same thing--the incident or event causing the personal injuries, such as the incident of a collision of automobiles, the incident of falling into an excavation, etc.) As stated in the last-cited case, if it were held that notice were necessary to the maintenance of an action for wrongful death, the action would be barred where the 'injury'--that is the 'accident' or 'occurrence' occurred more than ninety days before death.

The language of the Supreme Court of Vermont in Bigelow v. Town of St. Johnsbury, 1918, 92 Vt. 423, 105 A. 34, 38, is here appropriate: 'It is argued that * * * persons financially injured through the death of their next of kin must give notice the same as they would be required to give if they were themselves physically injured. The absurdity of such a construction is manifest from its logical result. If a person injured is, in consequence thereof, bereft of his reason, and the injuries result in his death 21 days after the occurrence of such injury, no action can be had or maintained, under the statute, for the benefit of the next of kin, because notice was not given within 20 days of the time of injury, during all which time the injured person was yet alive. An absured purpose is not to be attributed to the lawmakers, and a construction leading to an absurd consequence must always be avoided.'

Another Vermont case illustrative of the difficulties that would be involved were the statute held applicable is Eames v. Town of Brattleborough, 1882, 54 Vt. 471, where the person injured died within half an hour after the accident. Recovery was sought on behalf of two minor daughters, no claim or notice having been filed. The court said: 'We think there is no room for doubt that no notice was required in this case. The language is plain and the effect of it unmistakable. The 'person injured', as used in the proviso, refers to the person injured in the accident, not to the person injured pecuniarily, as a result of the accident.'

We will refer further to the meaning in section 1981 of the words 'whenever it is claimed that any person has been injured' in discussing respondents' contentions with respect to the applicability of the statute.

Other cases holding typical claims statutes to be inapplicable to wrongful death actions, many involving statutes containing much broader language than that involved in the instant case, are: Diariotti v. Missouri Pacific Ry. Co., 1914, 262 Mo. 1, 170 S.W. 865; Nesbit v. City of Topeka, 1912, 87 Kan. 394, 124 P. 166, 40 L.R.A.,N.S., 749; Orth v. Belgrade, 1902, 87 Minn. 237, 91 N.W. 843; Senecal v. City of West St. Paul, 1910, 111 Minn. 253, 126 N.W. 826; Parish v. Town of Eden, 1885, 62 Wis. 272, 22 N.W. 399; McKeigue v. City of Janesville, 1887, 68 Wis. 50, 31 N.W. 298; Laconte v. City of Kenosha, 1912, 149 Wis. 343, 135 N.W. 843; Knight v. Town of Haverhill, 1915, 77 N.H. 487, 93 A. 663; Perkins v. Inhabitants of Oxford, 1877, 66 Me. 545; Prouty v. City of Chicago, 1911, 250 Ill. 222, 95 N.E. 147; Devine v. City of Chicago, 1911, 166 Ill.App. 17.

Respondents urge that the language 'person * * * injured' includes injury resulting from the wrongful death of another, and that this view is supported by the interpretations, expressed or assumed, of...