*1 Appellate 19, No. District, April 9303. Second Division Two. [Civ.
1935.] al., ADAM OF Appellants, ROBERTSON et LOS CITY (a Municipal Corporation) al., Respond- et ANGELES ents. Conroy Appellants.
Blue & for Ray L. Chesebro, City Attorney, Schrader, Frederick von City Attorney, Assistant and Albert Wheatcroft and E. Meyer, Deputies City Attorney, Respond- G. Ellsworth ents.
SCOTT, J., pro tem. damages Plaintiffs sued to recover alleged to have been in an involving sustained accident automobile owned defendant and driven defend- employment ant Sanderson in course police Prior for such officer. suit claim filed the council defendant with At city objected introduction of evidence trial although timely, ground commissioners, not filed with filing by city required said board was charter. that such Objection judgment being entered for and on sustained appeal is taken. An 363 of the charter of Los *2 provides: “Every geles claim and demand bonds) (except . . . first on certain shall be employee approved writing and in officer expenditure or lia charter to incur the bility represented thereby.” provides 376 that suit brought on a claim it has been so not unless sented and In this case the claim was step preliminary council as bringing suit. interpretation upon which
The the sec cases, in in tions cited has been of considered cluding 139 City Angeles, Cal. v.Co. Los of App. (2d) 506], City 506 Haigh Pac. v. Los [34 of App. (2d) 779], 139 Cal. Pac. in each of Angeles, 595 [34 hearing by which Court denied. In the was 180 Angeles, we Spencer City latter case discussed v. Los of ; City Cal. 103 Pac. v. Los [179 163] of Angeles, App. 920], 92 585 Pac. v. Cal. Beeson [268 993], App. 122 Pac. City Cal. Angeles, [300 of involved, directly question which here proper body with a claim. arising Spencer case, supra, The did involve in the instant case. persuasive Company case was based on Continental Insurance public .service commis- board superseded by (which has been water sioners exercising commissioners), proprietary, as power XXII distinguished governmental, functions. Article powers, its broad which include city charter sets out autonomously, carry to sue and be sued and enterprise business charter, far-flung under the knowledge. a matter common case, out of supra, deals a claim The Beeson by in a storm drain maintained of a child the death works, in connection with public board streets, sewers, bridges, maintenance of construction and buildings, etc., public are enumerated lights, tunnels, street in XXIII article charter. As we observed Haigh in that supra, “any case was incurred negligent reason of the act or omission performance board duty maintaining its own sewers drains, and it could in- not have been by any curred act of the council”; and the conclusion seems appellate reasonable that the court in the believed that the language used in the Continental Insurance Company case, supra, with reference ato board which was exercising proprietary powers, by analogy be extended to apply which, while performing governmental functions, work such as that done by the board of public works. The language in the Continental Insurance Company case, supra, controversy ap- proved to boards functions, it must be observed, directly applied Beeson case to the board public works, logic with no declaration precedent legal bridge separated the difference characteristics case, moreover, them. The Beeson in the considers defects *3 complaint it if render defective even Nevertheless, filed. Su- since the proper a claim hear- denying it in has reviewed preme Court language court, modifying the used ing in without reasonably relied have and since claimants opinion, the follow, we course for them to establishing the the case as by implications claims its to to as abide are constrained public works. against the board of for torts concede, however, that the construction cannot We war- charter cited would sections case on the Beeson justify require filing of so as to rant an extension com- commissioners when claim with board of sought city by of a from the reason a tort pensation is analogy No can be found between article police officer. prescribing XIX charter the functions of the XXII and XXIII above police commissioners and articles grants has certain licenses and That board referred to. personnel police department, there charge regulations powers from rules and end. Aside its business, orderly conduct of its to the con- or ordinances the enforcement no laws enacts department’s work. We do not stitute the substance case should the Continental used believe that department where the is extended to cover proprietary work so similar compel analogy by the drawn character as to appel third presiding justice As the case. learned opinion in in his late district observed judicial knowledge of case, supra: court take “This diversity Angeles great and thé City of the area of the which it governmental interests with inconve great hardship and concerned, and be a it would from the peril nience to demand that citizen at his select great and commissions of boards claim.” proper to charter the subordinate with whom city or not authorize the The charter course does liability department nor incur thereof to commit arises committing means of a tort. consequent It is operation of law the tortious acts. subject appraisal liquidated audit or contractual, nor damages. general said in relates The court apparent “It supra: framers general plan or scheme and intention of provide for legislature was first to and of the necessary prerequisite demand as a presentation city should end that of a suit to the the maintenance being pay sub always given opportunity second, and adminis jected litigation, as its business boards create new responsibility increased to trative relieving the end of with the commissions it enabling responsibilities and many of its council of body.” legislative especially a distinctive function, more police commissioners suggested that the board It is not as that approving a city by could bind the case, nor could defend instant sented city, being pressed any judg Nor could authority so to do. or resources *4 srejected. only the claim wa after ment recovered would be such a claim receiving of that function city council and messenger it to the to transmit act as a body with reference that action of report back the such a board presentation intermediate it. This very the attainment prove an obstacle delayed or failed if the board being, rule into brought body the latter city council claim to to transmit thereby kept settling making paying from ade- or it or inquiry prepare Furthermore, quate defense. just
be quoted absurd construe the court’s meaning that deter- charter intended that the load of reject mining whether dam- a claim for should ages should be council lifted the shoulders placed upon employee. some officer or subordinate very any Yet absurdity that the inevitable concomitant further or unwarranted theory that extension of a claim tort the demand presented agency having jurisdiction over the liability. committed giving the tortious rise to act the contrary, duly On council is the constituted representative paid taxpayers money is to whose satisfy be held harmless fraud or extortion To is to be defended. the claim must action, come for to it the demand in a case such as this.
We must plaintiff conclude of this objection filed with the council and that to the introduction of evidence should have been overruled plaintiff trial court so proof. could have her
Judgment reversed.
Crail, J., concurred.
STEPHENS, J., Concurring. P. I concur the rule because of decision should changed not be at this late date. It be seen referring day to several other eases filed that strictly itself is not consistent in its construction ambiguous provision referring to notice before suit city. may be filed by respondents
A to have the cause heard judgment Court, Supreme after the District Court of 18, 1935. denied Court on June Appeal, was