KENNEY v. ANTIOCH LIVE OAK SCHOOL DIST (1936)

Plaintiff, a ten year old pupil attending the Antioch Live Oak School, was struck in the face by a baseball bat which flew from the hands of another pupil while they were playing a game of baseball on the school grounds during school hours, under the direction and supervision of the principal and the physical education teacher of said school, as part of the physical education course which plaintiff was required to take along with other school work. As a result of the accident plaintiff suffered the permanent loss of three upper front teeth; and through his guardian ad litem he brought this action for damages against the district, its board of trustees, and the principal and the physical education teacher thereof, alleging that the accident was proximately caused by the carelessness and negligence of said teachers in directing him to stand in a dangerous position to the left of and about three feet behind the student who was “at the bat” and about to bat the ball. The trial court sustained defendants' demurrer to the complaint without leave to amend, and from the judgment of dismissal entered pursuant thereto plaintiff appeals.

Section 1 of a legislative act passed in 1931 (Stats.1931, c. 1168, p. 2476) entitled “An act relating to the liability in damages of officers of municipalities, counties, cities and counties, school districts, and the State of California, in the case of injuries to persons or property,” etc., provides: “Whenever it is claimed that any person has been injured or any property damaged as a result of the dangerous or defective condition of any public street, highway, building, park, grounds, works or property, and/or the negligence or carelessness of any public officer, a verified claim for damages shall be presented in writing and filed with such officer and the clerk or secretary of the legislative body of the municipality, county, city and county, or school district, as the case may be, within ninety days after such accident has occurred.” And by amendment in 1933 to section 4 of said act it was among other things declared that the word “persons” as used in said act includes any pupil attending the public schools of any school or high school district, and that the words “public officer,” “officer,” or ß7Fofficers” include any deputy, assistant, agent, or employee of a municipality, county, city and county, school district, or the state of California, acting within the scope of his office, agency, or employment. Stats.1933, p. 2148. In the present case it appeared from the affirmative allegations of the complaint that plaintiff did not comply with the requirements of said act in that he did not present or file his verified demand for damages until more than five months after the accident; and it was upon that ground the demurrer to the complaint was sustained without leave to amend. The trial court's ruling is supported by the following cases which hold that the requirements of said statute and those of a companion act thereto passed at the same time (Stats.1931, c. 1167, p. 2475) are mandatory, and that therefore failure to comply therewith is fatal to any action afterwards instituted for the recovery of damages for injuries to person or property sustained under the circumstances specified therein. Jackson v. City of Santa Monica (Cal.App.) 54 P.(2d) 743; Douglass v. City of Los Angeles (Cal.Sup.) 53 P.(2d) 353; Thompson v. County of Los Angeles, 140 Cal.App. 73, 35 P.(2d) 185; Phillips v. County of Los Angeles, 140 Cal.App. 78, 35 P.(2d) 187; Spencer v. City of Calipatria, 9 Cal.App. (2d) 267, 49 P.(2d) 320, 321; Myers v. Hopland U. E. School Dist., 6 Cal.App.(2d) 590, 44 P.(2d) 654; Norton v. City of Pomona et al. (Cal.Sup.) 53 P.(2d) 952; WhiteSatra v. City of Los Angeles (Cal.App.) 58 P.(2d) 933.

Plaintiff contends that his action is based on section 2.801 of the School Code, as amended by St.1931, p. 2487. But even so, the mandatory provisions of said statute are applicable thereto. Myers v. Hopland U. E. School Dist., supra.

Plaintiff further contends that even though his failure to present and file said verified claim within the time specified in the act bars his right of recovery against the school district and its board of trustees, he may nevertheless maintain the action against said teachers through whose negligence he alleges he was injured. We find no merit in the contention. As will be noted, the title of the act begins thus: “An act relating to the liability in damages of officers,” etc.; and the opening clause of section 1 provides in broad terms, “Whenever it is claimed that any person has been injured * * *” etc. Moreover, by the 1933 amendment (Stats. 1933, p. 2147) to section 2 of said act it is provided that “Whenever any suit for damages is brought against an officer” for damages arising out of circumstances set forth in said act the attorney for the public or quasi public corporation or district shall act as counsel in defense of such suit, and the expenses involved therein shall constitute a public charge. (All italics ours.) It is evident, therefore, that the mandatory provisions of said act were intended to apply and the terms thereof are constructed so as to include any action for damages which may be brought against the officer, provided, of course, his alleged negligence was committed during the course of his service or employment. And this view is further fortified by the fact that it has been held that the provisions of said act apply with equal force to actions brought under the authority of former section 1714 1/2 of the Civil Code, now section 400 of the Vehicle Code. Myers v. Hopland U. E. School Dist., supra.

Plaintiff cites the case of Davie v. Board of Regents of University of California, 66 Cal.App. 689, 227 P. 247, as supporting his theory. But no statute was there involved; the case was decided in 1924; while here the situation is controlled by specific legislative enactment; and as said in Spencer v. City of Calipatria, supra, “no right to bring such an action exists independent of statutory enactment and, in giving such a right, the Legislature may prescribe the procedure and conditions under which it may be exercised.”

Finally, plaintiff contends that since said act purports to impose conditions precedent for the commencement of actions for negligence against officers and employees of such public and quasi public corporations and districts, and does not require the same conditions to be followed in the commencement of like actions against other classes of employees, the act is violative of subdivisions 19, 32, and 33 of section 25 of article 4 of the Constitution, forbidding the enactment of local or special laws granting to any group, association, or individual any special or exclusive right, privilege, or immunity, or for limitation of civil or criminal actions, or where a general law can be made applicable. Plaintiff cites no cases to substantiate his contention, nor has he presented any argument in support thereof. After citing the provisions of the Constitution he merely states that “the effect of the statute in question is to confer upon public employees an immunity from liability unless a verified claim is filed with them; furthermore the requisite that the claim be filed with the employee within ninety days is in substantial effect a special statute of limitations, and is the grant of a special privilege to such defendants.” In answer thereto it will suffice to say that in order to be general in its scope a legislative act need not include all classes of individuals; that it answers the constitutional requirements when, as here, it relates to and operates uniformly upon the whole of any single class selected, according to some natural or extrinsic or constitutional distinction. 5 Cal.Jur., pp. 794, 796, and cases cited in 3 Cal.Jur. Ten Year Supp., p. 799.

The judgment is affirmed.

KNIGHT, Justice.

We concur: TYLER, P. J.; CASHIN, J.