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District Court of Appeal, Third District, California.


Civ. 7954.

Decided: November 28, 1951

Fred W. Reyland, Jr., County Counsel, William R. Mitchell, Asst. County Counsel, Modesto, Vernon F. Gant and Carlos J. Badger, Modesto, for appellants. C. Ray Robinson and Herbert Hawkins, Merced, for respondents.

On September 23, 1947, respondent William H. Pirkle was an 8th grade student at appellant Oakdale Union Grammar School. On that day he engaged in an interclass touch football game during the noon recess. The game was between the 7th and 8th grades. In the course of play he received an injury which necessitated removal of his spleen and one of his kidneys. Through his father, John H. Pirkle, as guardian ad litem, he brought action against the school district, the principal and the athletic director. John H. Pirkle also brought action to recover medical, hospital and surgical expenses incurred by him as a result of the accident. Both plaintiffs in their respective counts alleged that William's injuries were caused by the negligence of the defendants in failing to properly supervise and conduct the play between the classes. The jury's verdict awarded William $7,500 general damages and awarded his father $800. From the judgments entered thereon defendants appeal.

It is conceded that no claim was filed within ninety days of the injury as required by Section 1007 of the Education Code, formerly School Code Section 2.801. It is also conceded that William's claim against the district was filed 138 days after the injury occurred. With respect to the claim of John, the respondents assert and appellants dispute that the claim as filed for William included the claim of John.

Appellants all contend that the evidence is insufficient to support the implied findings of the jury that the school district and the two individual defendants were negligent and that such negligence, if any, was a proximate cause of the injuries sustained by William. We find it unnecessary to determine these matters since in our opinion we must sustain other contentions of appellants which dispose of the appeal.

Appellants contend that the failure on the part of either William or his father, John Pirkle, to file and serve their respective claims as required by statute was fatal to their causes of action. The reply of respondents is that appellants were estopped by their conduct from objecting that the claims were not filed within time. They rely upon Farrell v. County of Placer, 23 Cal.2d 624, 145 P.2d 570, 153 A.L.R. 323, claiming that the facts here justify the application of the rule therein declared. It is not and could not be contended that the filing of a claim is not mandatory and a condition precedent to suit. But the Farrell case held that the time requirement is procedural in nature and may be excused by estoppel, and the facts there pleaded were held sufficient, if proven true, to support a finding of such estoppel.

Appellants first argue that the language of the statute here involved is so different in context from the statute dealt with in the Farrell case that the rule there laid down is inapplicable. We think there is no merit in the argument. Specifically, appellants say that a proper consideration of the statute here shows that the statute is the measure of the power of the governmental agency, the school district, in respect of the claim, and hence that no deviation from the procedure laid down by the statute can be dispensed with in any way. We see no significant difference in the statutes, and accordingly hold that the requirement as to the time within which a claim must be filed is procedural and subject to waiver by estoppel.

However, we are unable to uphold respondents' claim that the facts relied upon by them do constitute an estoppel and on the contrary hold that the implied finding of the jury that the timely filing of the claims had been waived is without support in the evidence. The facts disclosed by the record are these: Within a day or two after William had been injured his father, John Pirkle, interviewed the principal, Gripenstraw, asking him if the school carried liability insurance and indicating to him that he, Pirkle, believed his son had been injured through the negligence of defendants. He was told that there was such insurance and that a report of the accident had been made to representatives of the insurance carrier. John Pirkle did not discuss the matter at all with Perrin, the athletic director, except in a casual way, having to do with the progress of William toward recovery. Gripenstraw told Pirkle that he might expect a representative of the insurance company to discuss the matter with him. Nothing was said to Pirkle by any of the defendants at any time with respect to the filing of claims. Some five or six weeks after the date of the injury one Drew called on John Pirkle and discussed the accident with him. Nothing was ever said between Drew and John Pirkle about the filing of claims. But Drew told John Pirkle that he was reporting on the matter to the insurance carrier and that they would consider whether or not there was negligence. He asked Pirkle what he would consider would be a proper amount of compensation to be paid if the insurance carrier should determine that there was negligence casting liability upon the district. Pirkle did not choose to state any amount at that time. Later, and within about three weeks of the expiration of ninety days from the date of the injury, Pirkle contacted Drew and remarked to him that he ‘had been requested by a number of friends to seek legal advice.’ Drew then advised him that before doing anything he should contact him again because he was expecting an answer from his company. Pirkle replied that ‘time was wasting’ and that unless something within a reasonable length of time one way or another was told him he would seek legal advice. Drew replied that the report was due at any time and should be in any day. About a week later Pirkle telephoned Drew who said no reply had been received. Pirkle again stated he was going to seek legal advice if something wasn't done and Drew replied ‘Before you seek legal advice and put this with any attorney talk to me first.’ Notwithstanding the foregoing, and some two weeks prior to the expiration of the time for filing claims, Pirkle consulted attorneys. He first went to a Mr. Scott to whom he fully stated all of the facts concerning the injuries of his son. Mr. Scott considered the matter, but on the succeeding day told Pirkle he would not take the case himself due to pressure of practice, but would send him to other attorneys. He gave Pirkle the names of two, and Pirkle immediately called upon one of them, a Mr. Damrell, to whom he also made a full statement of the situation. Mr. Damrell, according to Pirkle, examined into the matter, contacted the broker for the insurance carrier, learned that no settlement could be expected and finally reported to Pirkle that he also would decline the case. One other attorney refused to consider the case, basing his refusal, however, upon the fact that by the time he was consulted more than ninety days had elapsed since the injury. Thereafter respondents' present counsel were contacted and a claim was filed. These facts fall significantly short of the estoppel pleaded in the Farrell case. There was no duty upon the part of any of the defendants to counsel and advise Mr. Pirkle that the law required the filing of a claim. They were not called upon to speak on the matter by any inquiry of Pirkle's. The only facts which tend to support an estoppel are the statements attributed to Drew whereby he requested, as Pirkle put it, that Pirkle should not consult an attorney. But his request was ignored and Pirkle did consult, not one, but two attorneys in ample time to have filed the claim, and this he did shortly after he claims he was asked by Drew to refrain from doing so. Drew's endeavor to dissuade Pirkle from consulting an attorney was not the proximate cause of his failure to file claims. It must be borne in mind that the parties hereto throughout were adversaries, and at no time were respondents led to believe that liability was admitted or that a settlement would be made. No facts which would support a finding a estoppel against any of the defendants are presented by the record here.

The remaining question is whether it was necessary to file a verified claim for damages with the individual defendants, Gripenstraw and Perrin. Appellants Gripenstraw and Perrin contend that Section 1981 of the Government Code requires the filing of claims with them and that the failure to file such claims is fatal to the action against them. Section 1981 provides: ‘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.’

Section 1980 of the Government Code defines ‘Officer’ or ‘Officers' as follows: ‘Includes any deputy, assistant, agent or employee of the State, a school district, county or municipality acting within the scope of his office, agency or employment.’ The section defines ‘Person’ as including any pupil attending the public schools of any school or high school district.

We hold that Section 1981 is applicable to employees of school districts, and compliance with the section is a prerequisite to suit against such persons. Numerous cases have held that this section is concerned with the liability of public officers and employees, and is not concerned with the liability of public agencies. In Veriddo v. Renaud, 35 Cal.2d 263, at page 264, 217 P.2d 647, at page 648, the court states: ‘Division 4 of Title 1 of the Government Code deals with ‘Public Officers and Employees' and Chapter 6 of Division 4 treats of the ‘Liability of Officers and Employees.’ Study of the sections (1950–2002) which make up Chapter 6, and of the prior statutes upon which such sections are based, clearly indicates the intention of the Legislature to (1) define certain conditions of, and to prescribe procedural requirements for enforcing, the liability of public officers and employes for acts performed or damages arising in connection with performance of the duties of their office or employment (see §§ 1953, 1953.5, 1954, 1955, 1981); (2) permit the public agencies involved (the state, school districts, counties and municipalities) to provide liability insurance to officers and employes at agency expense (§ 1956); (3) specifically, to require the filing of a claim with the public officer or employe and with the public agency (in the case of a state employe the filing is to be with the employe and with the Governor) in the cases specified in section 1981, quoted hereinabove; and (4) provide for the defense at public expense of certain damage actions brought against specified public officers and employes (§§ 2000, 2001, 2002), including this action against the state employe who is defendant here (sub. (b)(1) of § 2001).'

In discussing the applicability of Section 1981 to public employees the court stated in 35 Cal.2d at page 265, 217 P.2d at page 648: ‘As already pointed out, section 1981 falls within a chapter of the Government Code dealing with the liability of officers and employes, and if compliance with its provisions is not a prerequisite to suit against such persons on account of the claims specified in that section, then the section appears to be wholly meaningless, since it is not applicable to claims against a public agency. Such a viewpoint does not overlook the common law liability of an employe as an individual for his own negligence (see Mock v. City of Santa Rosa (1899), 126 Cal. 330, 344, 58 P. 826; Payne v. Baehr (1908), 153 Cal. 441, 444, 95 P. 895; Moore v. Burton (1925), 75 Cal.App. 395, 401, 242 P. 902), but simply recognizes that the Legislature has extended to public officers and employes, who incur liability in the performance of government service, the protection of a claims statute and the privilege of having defended at public expense those damage suits which are enumerated in Chapter 6.’

The respondents contend that Section 1981 of the Government Coe does not apply to defendants Gripenstraw and Perrin upon the ground that Section 1007 and following sections of the Education Code cover the entire field on the subject of claims and actions against school districts and employes thereof, and that these sections do not require that claims be filed with employes. Section 1007 provides: ‘The governing board of any school district is liable as such in the name of the district for any judgment against the district on account of injury to person or property arising because of the negligence of the district, or its officers, or employees in any case where a verified claim for damages has been presented in writing and filing with the secretary or clerk of the school district within ninety (90) days after the accident has occurred. The claim shall specify the name and address of the claimant, the date and place of the accident, and the extent of the injuries or damages received.’

We find this contention without merit upon a consideration of the purposes to be accomplished by these sections. Section 1007 of the Education Code requires the filing of a claim where the injured party seeks to impose liability upon the school district, whereas Section 1981 of the Government Code deals with the enforcement of claims against officers or employees.

Motion for judgment notwithstanding verdict was made by each defendant. They were denied. They should have been granted. Section 629 of the Code of Civil Procedure provides that in such cases an appellate court may order judgment to be so entered. This case was fully tried. Therefore, it is ordered that the judgments appealed from be reversed and the trial court is directed to enter judgment in favor of each defendant-appellant.

VAN DYKE, Justice.

ADAMS, P. J., and SCHOTTKY, J. pro concur.

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