*1 directly made, prin- loans for himself as a Wallis solicited cipal. money using
That he had from Mrs. Wallis borrowed questioned. deals not Barker to his business finance case, the circumstances shown in under his Certainty, borrowing money from his former conduct not to client hand, although On the other Mrs. Barker be commended. tes- him, tified that she had confidence Wallis and so informed frankly very she she not also stated would have loaned promised money pay to him if had he not her the bonuses which she exacted from him. situation lawyer apparently then one where at- augment
tempted professional engaging his income highly business transactions which speculative, were and be- yond ability fairly his appraise successfully carry out. complaining He interested the witness ventures promising profit her prudent more than a investor would ex- pect. The inevitable result is unfortunate for both of them but, the reasons which stated, have been his conduct does justify disciplinary action under the State Bar Act. charges petitioner are dismissed. A. No. 18179. In Bank. Dec.
[L. 1942.] ARTUKOVICH, JERRY JR., Minor, etc., Appellant, FRED O. ASTENDORF al., et Defendants; COUNTY ANGELES, OF Respondent. LOS *2 Appellant. A. D. J. M. Sinclair and Orme O’Connor, County Jennings Belcher, Fargo, & J. H. Stevens Counsel, Prichard, County V. 0. Assistant Counsel, and S. (cid:127) for Respondents. judg- appeals SPENCE, pro J. tern.—Plaintiff trial sustained ment of entered after court dismissal complaint with- defendants’ to as amended demurrers out to further leave amend. alleged May 1940, complaint, 17, ón which was filed of 16 and a ward minor of the plaintiff, a transported on juvenile court, being June was camp county defen- truck driven to forest probation employee deputy Astendorf,
dant officer Angeles, that while county of Los the defendant oper- negligently Astendorf so being transported said so and to overturn ated said truck to cause same amended injure complaint thereafter plaintiff. Said adding 6, 1941, by the follow- February stipulation on damages sought ing allegation: “That no for the claim the defen- presented this has been or filed with complaint thereof, County Angeles, Los clerk auditor dant inclusive, Code, 4074-79 Sections Political under California or otherwise.” concerning pro appeal on question
No is raised the trial judgment of court with the order and priety of contends, Plaintiff respect defendant Astendorf. however, sustaining court the trial erred the demur- entering county Angeles rer of the defendant of Los and in judgment in favor of More dismissal said defendant. specifically, provisions the contention is that of section require presentation of the Political county of supervisors claim board brought thereon, apply before do not plaintiff plead minors required was therefore not presentation. precise question While plaintiff’s con appear previously tention does have been raised and decided, jurisdiction there are several cases in this either hold ing statutory assuming provisions, that other presentation claims, apply (Phillips to minors. do Angeles, Cal.App. Los P.2d Myers Hopland Dist., 6 Cal.App.2d U. School E. 654]; Carpenter Casualty P.2d Co., Cal.App.2d v. Eureka Plymouth P.2d Dist., Wicklund Elem. School Cal.App.2d 314]; Kline v. P.2d San Francisco U. Dist., Cal.App.2d School
362].) summarizing in the rule announced the above others, recently mentioned authorities this court said High Superior in 20 Court, School Dist. v. Redlands Cal.2d 490], page 348 P.2d “Cases at have established [125 liability municipalities, that of counties and school dis negligent tricts for employees acts of their officers and solely provisions in statutory Any is derived this state. therefore, plaintiff, must mandatory requirement fulfill prerequisite that claim be filed as maintaining verified suit under the statute and failure to claim is file such a fatal of the cause action.” underlying principles upon which the authorities are (1) any political
based are neither the state nor of its may of specific statutory subdivisions be sued in the absence permission; (2) right that where a of action the state any political of statute, is created by subdivisions right may by any be Legis- circumscribed conditions that the to impose; (3) lature see fit Legisla- when general ture mandatory provision requiring enacts a in terms that all claims be any must before brought thereon, compliance with such condition is an indis- prerequisite bringing pensable by of such action regardless person, physical of his or his or mental 332 (See City Glendale, 12 Cal.App. condition. Johnson v. 580].)
2d
[55
above mentioned decisions
The conclusion reached
juris
great weight
authority
in other
line with
Manitou,
232; City
(Baker
Town
277 F.
v.
dictions.
So.
Weston,
With right which he plaintiff the fact that the calls our attention to Vehicle 400 of the seeks enforce was section created specifically required Code and that “no claim is section, establishing liability.” however, permits ac Said county only tion to “in the manner brought di law” found rected “manner law.” The directed in 1907 section 4075 of which was enacted the Political Code *4 400 of the Vehicle long prior section and to the enactment Code, forerunner, section or the of its enactment the Civil Code. “the argues Plaintiff act further ’’ minors, citing specifically apply of a claim does not may
only statement. It be authority section 4075 as for found in section conceded that the “minors” is not word
¿33 in the section ex- nothing there is hand, other on the but, thereof. requirements minors empting on a limitation 4075 contains of section paragraph first The part, provides in supervisors board power of the any hear or consider must supervisors not “The board . . . any allow claim credit or nor shall the board claim . . . year filed . . within a presented and . same ... is unless of said paragraph second claim accrued.” The after . . the. any county . . shall be . provides “All claims section provided herein be- supervisors as the board presented to claim, suit brought any such and no may on fore suit until claim has brought on such claim said shall be re- expressly section provided herein ...” “any” “all” claims before quires presentation language “any brought no suit” thereon. contains in- justifies broad terms were a conclusion exception and, under subject limitation or tended to be of minors cited, above favor the authorities persons laboring under other disabilities be written judicial interpretation. guise under the said section state,” find respect “public policy With we of the District nothing the above-mentioned decisions Appeal Courts of inconsistent It is true which is therewith. always policy of this state and of other it has been the purposes. certain place states in a favored class minors Angeles, Phillips pointed But as out Los Cal.App. 187], “The of the 78, 79 solicitude rela- contractual other protecting law a minor his tionships general application.” For limited and not liability for example, not a minor from the law does relieve (Civ. §41) civil it make him wrongs Code, his nor does (Pen. Code, punishment immune from for his criminal acts 26). subject fixing is itself age § every special con- practically which is covered have to those who extended sideration which has been covered statute. likewise statutory attained such extending consid- special statutory provisions Thus there are which cer- time within respect to the eration to minors with Proc., (Code Civ. commenced proceedings tain must be spe- 931), but 352, 1272; Prob. §§ §§ pro- limited expressly extended is cial consideration provisions no similar mentioned. We find ceedings therein *5 extending special consideration minors in prescrib- ing the within which time be time claims must filed or the within proceedings upon rejected must be commenced claims either in probate proceedings (Prob. Code, §§ 714, 716) liquidation or in proceedings (Leering’s Gen. Laws, 136; Act 652, Leering’s Laws, 13.16; Gen. Act 986, § §§ 1021-1032); Ins. Carpenter held it was in §§ Co., Eureka 14 Cal.App.2d Cas. that 682], where such in exception minors, statutes make no favor implied. might none There be are other statutes which has be mentioned but sufficient said to the show that Legislature apparently questions pub- balanced the has in policy lic each instance and has determined involved extending policy special consideration to whether the believe, outweighed other If it policy. minors some did so exception in minors, into the was written statute favor of but exception if it no such was believe, did so so written the statute. disclosed, Legislature
So far as has the our search has made in favor of in any minors claims enacted statute history at entire during time the of our state. Further- Legislature more, has the “person” whenever defined word statute, entirely it has made it clear claims that it legislative minors. policy apply make such statutes days presentation Thus in the statute within 90 public of claims school districts and other bodies injuries resulting public property, word defective “person” has pupil attending been defined “to include public (Stats. 2475; Leering’s schools.” Gen. 1931, p, Laws, 5149, 5; Leering’s Act see p. 2476; also Stats. § 5150, §4.) Laws, Gen. Act It is matter of common knowl- edge that pupils attending the vast the public appears schools are minors. It therefore public expressed Legislature policy state, of this claims statutes, contrary by plaintiff and it to that claimed appears that mentioned decisions of the further the above harmony Appeal public Listrict are with the Courts of policy expressed. so argued change policy that there be should argument Legislature should addressed to
but connection, rather than courts. we find Legislature regular met in de- four sessions since the supra, and Angeles, Los Phillips cisión in in Johnson v. regular since the decision sessions three any claims supra, it amended Glendale, and that has not or persons minors exception in favor of to make an appears It further other disabilities. laboring under Act (Stats. 1933, 2147) amended Legislature p. de 2476) so as to (Stats. 1931, p. Deering’s General Laws *6 thereby re including “employee,” fine the word “officer” as days within their claims quiring pupils present school regardless of said act falling provisions the of cases within public injuries negligence of whether their resulted from the Hopland Myers public employee. (Compare officer or of a Dist., H. supra, Escondido School U. U. E. School and Bates Dist., Cal.App. 884].) The conclusion legislative inescapable therefore that is an established there policy provide exceptions for in favor of minors no statutes, claims opinion and of that this court would we are the if it legislative commit field trespass an unwarranted into the contrary to such should write an into section legislative policy. established juris-
Plaintiff upon cites relies cases from other and a few weight dictions harmony great with the cases are not in authority. part of the of tendency upon These show a cases some particularly courts to read into statutes, claims time, those prescribing very periods ex- short of an ception minor, injured favor of incapable physically an mentally doing required incapable act himself and the legally agent appointing him. required an act for do the usually The basis of minority has been rule decisions the impossibility asserted compliance with statute the injured us, the minor. But under the claim the before plaintiff the minor presented at time could have been year parent within one have could guardian. Board, (Kelso Education, Cal.App.2d Furthermore, plaintiff the minor here represented was guardian, represented who in turn was attorney. by an ample compliance time for as this action brought happening within the eleven months after the Therefore, argument accident. impossibility the com- pliance ground could not have force here. But the main minority distinction of the rule cases is that we find none of those eases in any jurisdiction decided where the claims jurisdiction affirmatively showed
statutes of the established legislative applicable to minors. policy to make claims statutes suggested a further which should point
Plaintiff It that section apparently be mentioned. contended county against Vehicle authorizes the to insure the Code liability imposed by section, purpose the of section the 4075 of the Political Code of claims the longer The record exists. We find no merit in this contention. county before us that the nothing contains to show defendant against the rec liability but, assuming had insured never showed, provisions ord so 4075 would section 400 of applicable. liability imposed theless be section 4075 of county, upon Vehicle Code and section rests county provides Political Code that all claims presented. must section provisions Neither the nor the fact county Act authorizing Vehicle to insure county can such authorization have acted under any bearing upon have question before us. complaint plaintiff’s follows what has been said county
failed to state a the defendant cause of action that the trial the demurrer properly court sustained judgment of dismissal county defendant entered favor. *7 judgment is affirmed. Gibson, J., Shenk, J., Curtis, C. J., concurred. EDMONDS, me, it anomalous Dissenting. seems J., —To making a minor, incapable that a who the law declares contract, pre- by requiring, as a condition is bound a statute bringing county, cedent a claim be filed against suit my conclusion, opinion, within period. a limited Such may be only by reached rules of stat- ignoring fundamental utory construction. interpretation con given a reasonable
Statutes should be courts have adhered justice, sistent with the dictates Legislature’s presumed the rule intention not be that the will the lan consequences to include harsh unless or absurd guage 3542; (Civ. is so clear to admit doubt § as etc., Stevinson, Cal. Joaquin, San Irr. Co. Badaracco, P. ; P. Cal. Uhl v. 924] Diego, Cal.App.2d Helping Home v. San Hand statutes, Furthermore, 722). ; 23 Cal.Jur. 778] been enacted to have deemed terms, are although general and the rules of law established recognition of well full with and a 784), (23 Cal.Jur. of the state public policy settled conformity containing exceptions as of them construction amount to does policy, public of law such rules judicial legislation. been legal status of infants immemorial the From time years and tender of their recognized singular, as and because hold them to understanding the law has refused lack of comparable many situations accountability adults. as same have of infants in favor one, special exceptions present example, For by Legislature and the courts. been made an the claim of in run limitations do not statutes of 352, (§§ 1272, majority. Code fant until he attains his (21 Proc.) guilty An of loches C.J. Civ. infant cannot be application 65). estoppel has no n. doctrine of cases cited 664].) minor (Estate Hill, P. to minors 67 Cal. A relating to under make a contract cannot Code), agreements property (§ 33, many real other Civ. entered him either infant disaffirmed time thereafter before his within reasonable age of 14 are (§34, Code.) Civ. And children under the incapable in the absence of clear committing deemed crimes charged against act proof committing time of that at the Code). they wrongfulness (§ 26, them, Pen. were of its aware taken the minority have Accordingly, strong of courts that, liability from exemptions position in view of various enacting Legislature, law, accorded infants as a or notice presentation of claims municipal corporations, precedent suits condition language class general did not to include intend By persons recognizes lacking responsibility. which the law age and decisions, minors, irrespective certain of these all regard capacity, have physical without their mental (McDon exempted operation such statutes. City ald N.E. Spring Talley, 285 Ill. 560; Ill.App. A.L.R. Freeport, Doerr *8 of Aurora, 38].) N.E.2d City Ill.App. Costello v. 510 295 [15 of only infants to those Other courts have extended intelligence and years of possess tender who sufficient do comply understanding comprehend with able and 338 (Lazich Belanger, 111 of v. Mont.
requirements
the statute.
City
Wells, 79
39
738];
48
Tulsa v.
Okla.
[191
[105
of
P.
Still
third view is taken
the New York courts.
state,
law,
requirement
as a
statutory
matter of
of
years
infant
10
notice is not enforced
immature
of
of
less. But it
of
applied
the cause
aof
minor
16
age,
jury
over
of
and it is for the
to deter
ages
whether a minor
of 10
16
mine
has suf
between
physical capacity
comply
ficient mental and
to be able to
Village
(Murphy
Edward,
Fort
statute.
v.
213 N.Y.
of
397
N.E.
1916C,
Ann.Cas.
City
Russo v.
[107
of
York, 258
762]; Yablonsky
New
N.Y. 344
City
N.E.
v.
[179
York, 128
121];
New
469
Misc.
N.Y.S.
v.
Adonnino
[219
of
Village Mount Morris,
Briggs
12
658;
Village
v.
N.Y.S.2d
of
Peekskill,
The fact has met several times since Appeal District Courts of decided that minor comply must general with a claims statute terms and has not amended not, believe, I law should acceptance considered an making body. that construction the law Por a court to upon legislative base its determination failure to act tois Co., (See disregard Toucey realities. v. New York Ins. Life 118, 139, 139-140 U.S. S.Ct. L.Ed. 967]; Helvering Hallock, A.L.R U.S. 119-121 604, 125 84 L.Ed. A.L.R. S.Ct. I reasons, that, For believe accordance with the legislative policy protect of this state to rights of minors generally, section of the Political inter- Code should preted inapplicable mentally to physically infants un- comprehend comply able with to its terms. Whether particular plaintiff has age infant reached the of understand- ing comply with question statute is a of fact which jury should be determined in connection with the other issues each case.
Applying case, this present rule the facts complaint age appellant discloses was 16 at action, the time the commencement of the it but contains allegation that he was immature and lacked such mental as to capacity cognizance be unable to know or take law, of the requirements of the or to comply the statu- tory concerning county. mandate claim with the allegation This is essential to the of a cause statement However, appellant action. should have been afforded opportunity supply deficiency, and it error the trial court sustain the demurrer leave without *10 amend.
Traynor, J., concurred.
CARTER, J.-—I dissent. opinion The is based legalistic theory on a purely regard cold without to consid- justice rights erations or of of those who because of dis- ability greater protection to are entitled than the law extends persons. applicability to normal The of claim to necessarily minors must lead absurd results. A minor of years competent tender is not legally a civil commence anything affecting legal action rights. or do his property requirement The that a claim be filed presupposes compe- a person tent as claimant: Section 4075 of the Political Code provision contains by anyone for the of a claim other than the claimant. The require not per- law does impossibility. Yet, of an require formance a ten- minor of years just der to file a claim amounts to that. How could a child sign five of verify less claim? Even name, any if he could write his document signed such child validity. would have no What then effect major- is the ity opinion holding that a minor must file a verified claim as prerequisite maintaining suit on a of cause injuries personal county? against a only is answer a minor’s cause of action in such a case is lost and he is barred from enforcing liability created statute for his benefit. Such a discriminatory construction renders the statute unconstitutional of equal protection denial of the law. supposed Legislature to be intended discriminating operation such given to the statute. Under interpretation may an adult recover injury for an re- sulting negligence county from the employee of but in- only justice fant not. rule consonant
341
might be
the claim
which
time within
infancy
tolls
may be
there
authority establishes
Respectable
filed.
for fail
upon
excuses,
disability,
based
read into the
210
Kingston,
App.
City
v.
(See Gold
a claim.
to file
ure
of
Middletown,
City
v.
735]; MacMullen
523
N.Y.S.
Div.
[206
of
; Murphy v.
863,
L.R.A. N.S.
N.E.
11
N.Y. 37
391]
187
[79
N.E.
Tillage
Edward, 213 N.Y.
[107
Fort
of
Oswego, 191 N.Y.
City
1916C,
; Forsyth v.
Ann.Cas.
1040]
City
; Winter v.
Am.St.Rep.
392, 123
605]
N.E.
[84
Am.St.Rep.
1101, 123
N.E.
Falls,
N.Y. 198
Niagara
[82
N.E.
The legislative policy an inescapable that there is established to in exceptions in favor of minors claims stat- provide for no utes, opinion this court commit of the that would we are legislative into field if trespass an the it should unwarranted contrary to such estab- exception section write an into legislative policy.” majority opinion The then refers lished jurisdictions in other where the courts to rule announced in granting exceptions construed favor of have such statutes disability. majority opinion persons under to minors and ‘‘ minority has rule decisions then states: basis of these compliance usually impossibility been the asserted with injured under by minor. But the statute statute before us, plaintiff presented the claim the minor could been have year at any within one have presented time could by guardian.” I parent or have in examined the statute question I and fail to exceptional provision care find interpretation therein to susceptible on a claim behalf by guardian. of a minor a parent filed or fact, no reference made in said is statute a minor or person disability. language under The exact is writing, signed by “such claim shall be stated claimant or someone him.” opinion authorized The majority does attempt to point years out how a minor of tender could anyone sign, verify present authorize or a claim on his be- ‘‘ majority opinion half. While the is reluctant to commit an trespass legislative unwarranted into the in creating field” an favor minors necessity so far as the concerned, a claim is no is shown in reading reluctance a provision into the statute claim or parent guardian on behalf a minor. But con- even ceding argument for the sake of opinion legislative not “trespassing field” in holding that section 4075 of the Political Code a parent authorizes guardian claim for personal injury file on behalf of a minor, opinion offers solution no for the ease which a minor parent guardian of tender might without suf- fer an injury negligence as the result of the of a county em- ployee, disability, his because of fail file claim within specified Obviously, time said section. under the rulé majority opinion, recovery announced could be had such minor. If there is consideration public policy support unjust which can rule, and inhuman it has not been disclosed utterance my come judicial any legislative attention from source. I obvious from what foregoing have said opinion judgment
that the should be reversed.