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


Civ. 11600.

Decided: August 27, 1941

Russell P. Tyler, of San Francisco, for appellant. John J. O'Toole, City Atty., Henry Heidelberg, Deputy City Atty., and Walter E. Trefts, Jr., all of San Francisco, for respondent.

Plaintiff appeals from a judgment for defendant entered after the sustaining of a demurrer to her complaint without leave to amend.

The complaint alleges that on September 9, 1931, plaintiff received personal injuries necessitating the amputation of a leg when she was struck by a streetcar negligently operated by the defendant city in its proprietary capacity. The complaint shows on its face that plaintiff did not file a claim with the city and county until November 24, 1939, which was more than the sixty–day period provided by section 87 of the San Francisco Charter. St.1935, p. 2421. In the claim, attached to the complaint as an exhibit, she averred that due to her injury, and the pain and suffering incident to it, her mental faculties were continuously impaired until after the expiration of the sixty–day period; that it was not until November 20, 1939, that she learned she was required to file her claim, on which date she first consulted an attorney.

On this appeal plaintiff contends that under the facts of this case, as set forth in her claim, she was not required to comply with the charter section; that the section would be unconstitutional if it deprived plaintiff of a right of action in the circumstances here disclosed; that the officers of the city and county had full knowledge of the facts of the accident; that the section should not be construed as requiring a claim to be filed in such circumstances.

There can be no doubt that the city charter provision applies to claims against the city based on negligence of its employees when engaged in a proprietary function. Cathey v. San Francisco, 37 Cal.App.2d 575, 99 P.2d 1109. This is conceded by appellant. In interpreting claim statutes the courts of this state have adopted the rule that such statutes are mandatory and that there must be at least substantial compliance with them. Douglass v. City of Los Angeles, 5 Cal.2d 123, 53 P.2d 353; Spencer v. City of Calipatria, 9 Cal.App.2d 267, 49 P.2d 320; Thompson v. County of Los Angeles, 140 Cal.App. 73, 35 P.2d 185; Farmers, etc., Bank v. City of Los Angeles, 151 Cal. 655, 91 P. 795; Coen v. City of Los Angeles, 70 Cal.App. 752, 234 P. 426; Continental Ins. Co. v. City of Los Angeles, 92 Cal.App. 585, 268 P. 920; Wicklund v. Plymouth E. School Dist., 37 Cal.App.2d 252, 99 P.2d 314; Wilkes v. City and County of San Francisco, 44 Cal.App.2d 393, 112 P.2d 759.

The contention made by appellant in the instant case has been passed on adversely to her in prior decisions. In Johnson v. City of Glendale, 12 Cal.App.2d 389, 55 P.2d 580, it was urged that physical injury arising from the accident for which recovery was sought dispensed with compliance with the provisions of the claims statute there involved. Stats. 1931, p. 2475. This contention was rejected. In so holding the court stated (12 Cal.App.2d at page 393, 55 P.2d at page 581): “The allegation of incapacity and inability to file a claim presents a question which has not been directly decided in this state and one as to which the authorities elsewhere are in irreconcilable conflict. In one line of cases it is held that the requirements of statutes, charter provisions, or ordinances for the giving of notice of injuries or for the presentation of claims for damages need not be strictly met, and that substantial compliance only is demanded. In so holding, the courts have supplied conditions not expressed or attempted to be expressed in the laws. This is held justified by assuming that it could not have been the intention in enacting the legislation to bar the claims of those who might be unable to present them on time by reason of physical or mental incapacity, and this assumption again is held justified under the maxim that the law does not require impossibilities. The contrary, and we think the more satisfactory, rule is that the giving of notice or the filing of claims within the limited period allowed therefor is purely a matter for legislative control, and that where a law makes compliance mandatory and no exceptions are provided in the law itself, the courts may provide none under the guise of interpretation or construction. [Citing fifteen cases.]”

The holding in the Johnson case was followed in Wicklund v. Plymouth E. School Dist., 37 Cal.App.2d 252, 99 P.2d 314. In that case, in interpreting the claims statute contained in section 2.801 of the School Code, the court stated (37 Cal.App.2d at page 254, 99 P.2d at page 315): “The statute makes no exception whatever, based upon the physical incapacity of the claimant during the said period. Whether the injury is continuous or not, is immaterial. The claim must be filed within ninety days from the date of the ‘accident’, irrespective of the nature of the injuries received. This does not mean ninety days from the date when the full result of the injuries were ascertained, or from the date of recovery from such injuries. It is a familiar rule that where a right of recovery is purely statutory and is granted upon conditions, one who seeks to enforce the right must by allegation and proof bring himself clearly within the conditions. Johnson case, supra.

“It is true, as pointed out by appellant, this holding may, in some cases, work a real hardship. If it does result in an injustice and is too onerous, that is a matter of legislative concern, and not judicial interpretation. The complaint shows that appellant failed to file her claim within the time provided by the School Code, and hence it did not state a cause of action.”

It has also been held that the claims statute involved in the Johnson case is applicable even though the injured person is a minor. Phillips v. County of Los Angeles, 140 Cal.App. 78, 35 P.2d 187; Myers v. Hopland U. E. School Dist., 6 Cal.App.2d 590, 44 P.2d 654.

These cases establish the rule that the claims statute contained in the general state law does not impliedly except disability, whether that disability be physical, or because of minority.

It is true that all of the above cases dealt with claims against public agencies for torts committed by employees while performing a governmental function. The liability was therefore purely statutory. Appellant urges that where the liability for injuries would exist at common law for torts of a public agency committed by employees while acting in a proprietary capacity, as in the instant case, and the liability is not purely statutory, the claims provision should be applied less strictly. Appellant concedes, however, as already pointed out, that the charter provision is applicable to claims arising out of torts committed by governmental employees while performing a proprietary function. If a city has power to pass such a charter provision, and it must be and is conceded that it has, then no legal reason has been suggested why such charter provision should be interpreted differently from the general state statute applicable to governmental agencies for torts committed in a governmental capacity.

The second contention of appellant is that literal compliance with the charter provision should not be exacted where, as alleged here, the officers of the city, including the controller, with whom the claim must be filed, had full knowledge of the accident. It is now well–settled law that officers of a governmental agency cannot, by their actions, waive compliance with a claims statute, nor can they estop the governmental agency from setting up the defense of failure to file a claim. Their actual knowledge does not estop the governmental agency, or relieve the injured person from filing a claim. Kline v. San Francisco U. School Dist., 40 Cal.App.2d 174, 104 P.2d 661, 105 P.2d 362; Cooper v. County of Butte, 17 Cal.App.2d 43, 61 P.2d 516; Johnson v. City of Glendale, supra.

The rule requiring the filing of a claim even where the plaintiff is, because of the accident, mentally or physically incapacitated, is undoubtedly a harsh one. However, once it is conceded that a governmental agency has power to pass such a statute with or without exceptions to its operation, then the matter becomes a problem of legislative policy with which the courts may not interfere.

The judgment appealed from is affirmed.

PETERS, Presiding Justice.

KNIGHT, and WARD, JJ., concurred.