Viglione v. City & County of San Francisco

JONES, J. pro tem.

This is an appeal from an order directing the issuance of a writ of mandate.

Respondent, Horme Viglione, claimed that she sustained injuries on the 24th of March, 1949, while she was riding in a streetcar owned and operated by appellant, City and County of San Francisco. On the 1st day of April, 1949, she filed a verified claim against the said city and county for damages in the sum of $10,000. After negotiations between her attorneys and the claims adjuster for the city and county, a settlement was arrived at on the 14th day of March, 1950, whereby her claim was settled for $2,100. On the 23d of

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March, 1950, she executed a release in full settlement of her claim and delivered it to the representative of the said city and county. Both prior and subsequent to the delivery of the release respondent’s attorneys were advised by the claims adjuster that it would not be necessary to file a suit for damages to protect respondent’s rights against the running of the statute of limitations as the matter had been settled. Her counsel were further informed that when funds became available, the settlement would be approved and a warrant issued by the controller. In due course the claim was approved by the claims department, and was allowed and passed by the Public Utilities Commission. The controller, however, refused to approve the claim or draw his warrant in payment thereof on the grounds that suit had not been filed within one year after the happening of the accident and .that the claim was barred by the statute of limitations. Respondent then commenced this action for a writ of mandate to compel the controller to honor her claim.

The alternative writ was issued on August 24, 1950, and on September 6, 1950, appellants, in response to the alternative writ, filed an answer to the petition, and the trial ensued forthwith. Respondent called one witness only, the claims adjuster who had negotiated the settlement. He admitted all of the facts alleged in the petition, which are substantially as herein recited. Appellants declined to cross-examine and rested their case without proof of any kind on their part. Findings of fact were waived by both parties, and the court thereupon gave judgment directing the issuance of the peremptory writ as prayed. It is from this order that the appeal is taken.

The answer filed by the appellants in the trial court pleads the statute of limitations affirmatively in two separate special defenses. As stated, no proof was offered in support of these defenses and findings of fact were waived. There was a complete abandonment in the trial court of the bar of the statute as a defense, and no point is made of it by appellants on this appeal.