Wicklund v. Plymouth Elementary School District

[253]

TUTTLE, J.

This is an action brought to recover damages on account of personal injuries. The trial judge sustained a demurrer to the complaint, without leave to amend, and judgment was entered in favor of defendants. From this judgment plaintiff prosecutes the appeal.

The complaint alleges that plaintiff was a student in Plymouth School, and that, through the negligence of defendants, her dress became ignited and the resulting fire caused her serious and dangerous burns. The allegation with which we are here concerned reads as follows:

“That, while said burns were received, as herein alleged, on January 4, 1938, the effect thereof covered a continuing period, and from January 4, 1938, to August 3, 1938, as a result thereof, plaintiff was confined in a hospital, and, during such period, because of the severity and continuing effect of such injuries, plaintiff was neither physically nor mentally capable of having presented her said claim to the clerk of said School District, and that due to the continuing effect of such injuries, it was not until after August 3, 1938, that the extent thereof was ascertainable, and hence, the delay in presenting said claim to said clerk. ’ ’

The right of action is predicated upon section 2.801 of the School Code, which reads as follows:

“Boards of school trustees, high school boards, junior college boards and boards of education are liable as such in the name of the district for any judgment against the district on account of injury to person or property arising because of the negligence of the district, or its officers or

employees;

provided, however, that a verified claim for damages shall have been presented in writing and filed with the secretary or clerk of the school district within ninety (90) days after such accident has occurred. Such claim shall specify the name and address of the claimant, the date and place of the accident, and the extent of the injuries or damages received. ’ ’

It is contended by appellant that, although it appears that a verified claim was not filed within ninety days after the accident, the complaint alleges facts which, nevertheless, entitle plaintiff to recover. Those facts appear in the portion of the complaint quoted above.