HARDEN WARREN ALLEN, JR., a Minor, etc., Appellant, v. LOS ANGELES CITY BOARD OF EDUCATION et al., Respondents.
Civ. No. 23597
Second Dist., Div. Three.
Aug. 19, 1959.
173 Cal. App. 2d 126
Veatch, Thomas & Carlson and Henry F. Walker for Respondents.
The questions on the present appeal are whether а claim was required to be filed by or on behalf of the minor junior high school student for injuries sustained during a school recreational activity upon premises maintainеd by the board and, if so, whether defendants were estopped to take advantage of the failure to file a claim. No claim was filed.
The 12-year-old plaintiff was engaged with many other pupils in a school recreational activity, under the supervision of employees of the board, among them the defendant Irby. He was retrieving arrows from а bank when he was injured by a rock dislodged by another pupil.
Plaintiff‘s injuries were sustained March 3, 1956; the present action was commenced April 30, 1957.
At the trial, upon stipulation, evidence was received pertaining to the special defense that no claim had been filed, and to plaintiff‘s contentions that the filing of a claim wаs not required and, in the alternative, that facts alleged in the complaint, which he sought to prove, created an estoppel of defendants to rely upon his failure to file a claim. Trial of other issues was deferred. Findings were waived.
The judgment implies that the court found there was no estoppel. The witnesses were plaintiff‘s mother, Annie Ruth Allen, George B. Coan, an attorney, and Hugh A. Kelley, an
Mrs. Allen testified that Mr. Kelley said in effect that “they would be willing to pay the medical bill.” She said she thought it should be more than that. She also testified that Irby came to the Allen home several times and told Mr. and Mrs. Allen that he had cоntacted Mr. Kelley who told him that “they were willing to pay, for me not to worry about it and he was pretty sure that they would.” Mrs. Allen also testified that she discussed the matter with Mr. Coan but did not employ him. Mr. Coan testified that he had a vague recollection of Mrs. Allen‘s discussing her son‘s accident but that he had no recollection of having done аnything about it or discussing it with any representative of the insurer.
When questioned whether he had made the statement attributed to him by Irby, Kelley answered that he did not recall having made the statement. Kelley did, however, deny that he at any time told Mrs. Allen that the claim would be recognized or that anything would be paid; he told her an investigation was being made and if it showed fault on the part of the school they would be willing to negotiate; he did not tell her they would be willing to pay the medical bills nor did he discuss with her the filing of а claim. The failure of plaintiff to call Mr. Irby warranted the court in presuming
We shall notice first plaintiff‘s contention that he was excused by reason of his minority from filing a claim. The case lаw is to the contrary. As we have stated, the statutes do not exclude minors from the duty to file claims and the courts have consistently declined to hold that an exception should be read into them. (Artukovich v. Astendorf, 21 Cal. 2d 329 [131 P.2d 831]; Albaeck v. County of Santa Barbara, 123 Cal.App.2d 336 [266 P.2d 844]; Williams v. San Diego etc. School Dist., 143 Cal.App.2d 564 [299 P.2d 916]; Goncalves v. San Francisco Unified School Dist., 166 Cal.App.2d 87 [332 P.2d 713].)
We digress here to remark that relaxation of the responsibilities of minors with respect to filing claims in the future is provided for in recеntly enacted Assembly Bill Number 405, chapter 1724, 1959 Legislative Session. It converts into law the January, 1959, recommendations of the California Law Revision commission respecting the filing of claims against public entities, which were based largely upon the accompanying comprehensive study and report of Professor Arvo Van Alstyne.
The second point is that since the defendants had full knowledge of plaintiff‘s injuries and were investigating the claim, no purpose would have been served by filing a claim сontaining information already possessed by the defendants, hence none need have been filed. This contention was considered and held untenable in Hall v. City of Los Angeles, 19 Cal.2d 198, 202 [120 P.2d 13], Eppstein v. City of Berkeley, 52 Cal.App.2d 395 [126 P.2d 365], and Barajas v. San Dieguito etc. School Dist., 151 Cal.App.2d 709 [312 P.2d 282].
The finаl contention is that facts were established which created an estoppel of the defendants to urge as a defense the failure to file a claim. Wе cannot agree.
Under settled rules this court must presume that the trial court found the facts with respect to the interviews between Mr. Kelley and Mrs. Allen in accordance with the testimony of the former. As the court impliedly found upon sufficient evidence that Kelley made no representation with respect to an intention on the part of his company or the board to pay anything, that he did not suggest that the parents need not consult an attorney, and that he said nothing to encourage
The defendants maintain that the fact that no claim was filed precludes plaintiff from urging estoppel to rely upon his failure to cоmply with the statutory procedure. Inasmuch as we have held the claim of estoppel to be groundless in fact there is no necessity for a consideration of other reasons urged for affirmance of the judgment.
The judgment is affirmed.
Wood (Parker), J., concurred.
VALLEE, J.—I concur in the judgment. I am in agreement with the views expressed by the late Mr. Justice Carter in his dissent and those exрressed by former Mr. Justice Edmonds in his dissent, which was concurred in by Mr. Justice Traynor, in Artukovich v. Astendorf, 21 Cal.2d 329, 336, 340. Holdings which say that a 1-year-old child must file a claim are to my mind unsound. That is what the decisions hold. However, as a member of an intermediate reviewing court, I am bound by the decision of the majority of the Supreme Court in the Artukovich case and for that reason alone I concur in the judgment. Fortunately, the Legislature, at the last session, in some measure has remedied the condition, but the new legislation does not apply to claims relating to causes of action which accrue prior to its effective date.