STEWART v. McCOLLISTER

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District Court of Appeal, Second District, Division 3, California.

STEWART et al. v. McCOLLISTER.

Civ. 17069.

Decided: July 21, 1950

William N. Parker, of Pasadena, for appellants. Early, Maslach, Foran & Tyler and Robert E. Early, Los Angeles (John B. Connolly, Los Angeles, of counsel), for respondent.

Plaintiffs, Cecile C. Stewart and Elmer R. Stewart, brought suit against W. O. McCollister, seeking damages for personal injuries and injury to property suffered in an automobile collision resulting from the negligence of the defendant. McCollister answered, denying the material allegations of the complaint and later amended his answer, alleging as a separate defense that at the time of the accident he was employed by the City of Los Angeles as a building inspector and was acting within the scope and course of his employment, and alleging also that the plaintiffs had not presented any verified claim of damages to him or to the clerk of the City of Los Angeles. He was represented by his personal attorneys and not by the City Attorney. When the case came on for trial the special defense was tried first to the court. McCollister testified that at the time of the accident he was employed by the city and was engaged in the course of his service as a building inspector and was driving his own car. It was stipulated that no verified claim had been filed with McCollister or the city. The court, having found the foregoing facts, rendered judgment in favor of defendant, and plaintiffs appeal.

The sole question is whether the case comes under section 1981 of the Government Code, which reads as follows: ‘Whenever it is claimed that any person has been injured or any property damaged as a result of the negligene 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.’ (Our references to ‘cities' include other public bodies and we use the word ‘officer’ as including public employees.)

The section relates to claims of two classes, namely, those arising out of negligence of a public officer or employee during the course of his service, and those arising out of the dangerous or defective condition of public property alleged to be due to the negligence or carelessness of an officer or employee. Unless the claim asserted falls within one or the other of these classes, there is no requirement for the presentation of a verified claim. It is clear to us that the claim which constitutes plaintiffs' cause of action is not one within the letter or the purpose of the section. It is the nature of the claim or demand that determines whether the claimant has brought himself within the section. The introductory phrase of section 1981, ‘whenever it is claimed,’ contemplates that a demand will be asserted by the injured person claiming either negligence of a public officer during the course of his service, or ‘alleging’ negligence of an officer related to the dangerous or defective condition of public property. It is unmistakable that the word ‘claimed’ is used in its usual, natural, ordinary and popular sense and in the sense in which it would be understood by those for whom it was intended. 23 Cal.Jur., p. 749. The verb ‘claim’ means, according to the books, ‘to assert as a fact, to ask or call for, to require, to demand.’ And as a noun it means ‘a demand of a right or supposed right; a calling on another for something due or supposed to be due.’ A right to damages is not claimed, nor is a claim of damages made, until the claimant has taken affirmative action looking to the enforcement of his supposed rights. As we shall see, the elements of a claim which would bring it within the section are entirely foreign to plaintiffs' cause of action against McCollister.

It is essential in the first class of cases described in the section that the officer be accused of negligence during the course of his service, just as it would be necessary in the second class of cases to assert that the dangerous or defective condition of the public property was due to the negligence of the officer. Accordingly, in the second class of cases the filing of a claim is required when the dangerous or defective condition is ‘alleged’ to be due to the negligence of the officer. Such an allegation is necessary in order to state a cause of action against the officer for injury resulting from the dangerous or defective condition of public property. In either class of cases the allegation of facts constituting the cause of action establishes the nature of the claim. Whether the allegation be true or false is immaterial. The only difference in the wording that brings the two classes of cases under the claims statute is that the word ‘alleged’ is used with relation to the dangerous or defective condition of the public property caused by the negligence of an officer and the word ‘claimed’ is used in describing the cases of negligence of the officer during the course of his service. It is altogether clear that the words were intended to have the same meaning. The phrase ‘whenever it is claimed’ with relation to one class of claim and the phrase ‘alleged to be due to’ with relation to the other class of claim serve the same purpose, namely, to identify the nature of the cause of action upon which the injured person relies. The intention of the Legislature that the words should be given the same meaning is illustrated by the fact that in section 2001(b) of the Government Code ‘alleged’ is used in the same sense as the word ‘claimed’ is used in section 1981. Section 2001(b) reads: ‘(b) Whenever suit for damages is brought against any officer, including officers as defined in Article 2, of the State or of any school district, county or municipality on account of injuries to persons or property, alleged to have been received as a result of (1) the negligence or carelessness of such officer occurring during the course of his service or employment, or (2) the dangerous or defective condition of any public property, alleged to be due to the negligence or carelessness of such officer, it is the duty of the attorney for the State, district county, municipality, or other public or quasi-public corporation, as the case may be, to act as counsel in defense of such suit, unless lawful provision has been made for the employment of other counsel in connection therewith. The fees and expenses involved in a suit referred to in subdivision (b) are a lawful charge against the State, school district, county or municipality, as the case may be.’ [Enacted 1943.] (Emphasis added.) Thus the allegation of facts in the complaint which would bring the action within either subdivision (1) or (2) of section 2001(b) is sufficient to entitle the officer to a free defense, regardless of the truth of the allegation. The statute does not give him the right to a free defense unless he is accused by the injured party of having been acting in the course of public service, even though that fact may be alleged in the answer. And where the city alone is sued under the public liability law, Government Code, sec. 53051, based on Stats.1923, Ch. 328, p. 675, and ‘it is claimed’ that the injuries resulted from the dangerous or defective condition of public property, a claim must be filed with the city, and the city attorney must defend the suit for injuries ‘allegedly received as a result of the dangerous or defective condition of public property.’ Government Code, secs. 53052, 53054. In all these situations the applicability of the claims statutes and the duty of the city attorney to defend the action, arise when facts are asserted in a complaint, filed in an action, which would give rise to a cause of action against the city. This is true although, as pointed out in Ansell v. City of San Diego, 35 Cal.2d 76, 216 P.2d 455, section 1981 does not apply to cities. It is clear upon study of these related code provisions that the issues which are determinative of the nature of the claim, and the applicability of the statute, are those which are tendered by the plaintiff.

It is recognized in all the cases that the origin of the claims statutes is the interest of the city in having notice of certain types of claims, in order that they may be investigated, and in some cases compromised or resisted. The presentation of claims as required by section 1981 is of interest for the reason that cities may insure their officers against liability for injuries ‘resulting from their negligence of carelessness during the course of their service or employment and for the injuries of damages resulting from the dangerous or decective condition of public property * * * due to their alleged negligence or carelessness' etc., Government Code, sec. 1956, and, as we have said, in such cases the officer has a right to be defended at the expense of the municipality. There was a brief period when it was required that a claim be filed with the officer and the city in any case charging negligence of an officer, even though it was not claimed that the negligence occurred during the course of his service or employment. Stats.1931, p. 2476, Act 5150, Deering's Gen.Laws, p. 2205. Act 5150 was amended in 1937 so as to give the claims statute this broad scope. The amendment was declared unconstitutional for insufficiency of its title in Jackman v. Patterson, 42 Cal.App.2d 255, 108 P.2d 682. It was obviously out of harmony with the related claims statutes, and when Act 5150, supra, was codified the Legislature limited the requirement for the presentation of claims to the cases in which an issue is presented as to whether the negligence of the officer occurred during the course of his service. This statutory revision supports the view that an indispensable element of the demand for which a verified claim must be presented is an allegation of the public employment of the officer and negligence during the course of his service.

If the complaint against the officer alleges that the negligence occurred during the course of his service under public employment, and fails to allege the presentation of a claim to the officer and to the city, it is fatally defective, and the defendant officer is entitled to judgment on demurrer. Huffaker v. Decker, 77 Cal.App.2d 383, 175 P.2d 254; Veriddo v. Reynaud, 35 Cal.2d 263, 217 P.2d 647. In each of these cases, although the officer alone was sued, it was alleged in the complaint that the plaintiff had sustained injuries through the negligence of the officer occurring during the course of his service or employment. A demurrer was sustained without leave to amend, judgment was entered for the defendant, and affirmed on appeal. We do not see how any other conclusion could have been reached in those cases since the plaintiffs brought themselves within the letter of section 1981, and failed to allege that they had complied with its requirements. These recent cases make it clear that one who intends to sue, and to allege facts which would bring his case within section 1981, must lay the necessary foundation for such an action by presenting and filing a verified claim. We have no such case here. Plaintiffs Stewart did not allege in their complaint, nor have they asserted at any time, or in any manner, that McCollister was a city employee, and at the time of the accident engaged in the performance of his duties as such. Those facts were brought into the case by the defendant. The City of Los Angeles has no interest whatsoever in this lawsuit, or in the claim of damages upon which it is founded. To sustain the judgment upon the ground that plaintiffs failed to present their claims to McCollister and the city within 90 days after the occurrence of the accident would require not only that the provisions of section 1981 be distorted, but that they be distorted in a manner that would produce a wholly unjust and unreasonable result. The section would have to be made over by reading therein what has not been written. We would have to hold that it means something it does not say and that it does not mean what it says. Certainly the legislature has not provided that in any case of negligence against an individual, where it is alleged as a matter of defense, and established at the trial, that he was a public officer acting within the course of his service when the injury occurred, and that no claim was presented by plaintiff, the action must fail, even though the plaintiff has at no time claimed, or in any manner asserted, that the defendant was a public employee acting in the course of his service. Section 1981, as written, is reasonable and just. As construed by respondent it would be highly unreasonable. It would make it necessary in countless accident cases for the injured person to pursue an investigation to discover whether the wrongdoer was a public officer, acting within the course of his employment, and, if so, to lay a foundation for a suit against the public body, even though he did not intend to sue the employer. We can conceive of no good reason for imposing such a burden upon one who intends to disregard the possible liability of an employer, and to proceed only against the individual. We are unwilling to give to section 1981 an interpretation that would unreasonably discriminate between those who wish to sue public officers, ignoring the facts as to their employment and duties, and those who sue individuals who are not public officers. No basis whatever exists for such discrimination.

These claims statutes serve a good purpose, but at the same time have proven to be pitfalls into which many worthy claimants have stumbled to their dismay and defeat, as in the Huffaker and Veriddo cases. Frequent changes in the law have added to the confusion. The cited claims provisions relate only to cases in which the facts alleged by the claimant indicate liability of the city, whether the action is against the city, or the officer alone, or against both, for the dangerous or defective condition of city property, or for negligence of the officer in the course of his service. The present case does not fall in either category. Respondent's position finds no support in the wording of the section, and is manifestly opposed to its plain purpose.

The judgment is reversed.

SHINN, Presiding Justice.

WOOD and VALLÉE, JJ., concur.