ARTUKOVICH v. ASTENDORF ET AL (1941)

Plaintiff, a minor of the age of sixteen years, commenced this action against the county of Los Angeles and its employee, Fred O. Astendorf, to recover damages for injuries suffered by him on May 17, 1940, while he was being transported in one of the county's trucks driven by defendant Astendorf in the discharge of his duties. It was stipulated that the demurrer of defendant Astendorf should be sustained without leave to amend. The court sustained the demurrer of the defendant county without leave to amend and plaintiff has appealed from the judgment of dismissal.

It affirmatively appears in the complaint that plaintiff did not file any claim with defendant county or with any of its officers before commencing the action and plaintiff now argues that since section 400 of the Vehicle Code, St.1935, p. 152, the section providing for liability of counties for the negligent acts of the drivers of their automobiles, does not specifically require the presentation of a claim before the commencement of an action, it was not necessary for him to establish that a claim had been presented. It is provided in section 400 that those desiring to take advantage of its provisions “* * * may sue the State, county * * * in the manner directed by law”. At the time of the enactment of section 400 it was provided in section 4075 of the Political Code: “* * * all claims against any county * * * shall be presented * * * before any suit may be brought on any such claim * * *.” It is manifest that the expression “all claims” includes claims for damages for injuries caused by motor vehicles. The affirmative showing in the complaint of failure to file a claim before commencing the action establishes that plaintiff has not sued in the manner directed by law.

Plaintiff points out that section 4075 of the Political Code makes no reference to minors and contends that since plaintiff is a minor he was not required to file a claim. No decision has been cited by counsel in litigation arising from the code sections involved in this action but many decisions have been rendered by the reviewing courts of California in analogous situations in which it has been held that a minor plaintiff must file a claim with the proper official before commencing an action. 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; Carpenter v. Eureka O. K. Casualty Co., 14 Cal.App.2d 533, 58 P.2d 682. The reasons given in those decisions are applicable to the case under review.

Plaintiff refers to the provision in section 400 of the Vehicle Code which permits the county to procure an insurance policy to insure its liability and argues that since an insurance company may be called upon to pay the amount of a judgment that may be rendered he was relieved from filing the claim. It is of no consequence that the county may have chosen to protect itself by an insurance policy. The primary liability under section 400 is upon the county itself.

The judgment is affirmed.

WOOD, Justice.

MOORE, P. J., and McCOMB, J., concurred.