Smith v. County of San Mateo

[821]

NOURSE, P. J.

Plaintiff has appealed from an adverse judgment in an action for damages for the wrongful death of his minor son.

The death occurred while the minor was a member of a summer camp conducted by the defendant Young Men’s Christian Association (as to said defendant the action was dismissed with prejudice) in a public park maintained by the defendant county of San Mateo. At the time of the accident the child was sleeping in a cabin in the park. A large redwood tree, without any disclosed external cause, fell across the cabin causing the fatal injury. The injury occurred on June 22, 1939. A claim against the county was filed on September 18, 1939. The ninetieth day thereafter was December 17, 1939. Six months after that day was June 17, 1940. The complaint was filed on June 20, 1940.

The trial court found that the death was a proximate result of the negligence of the respondent and that the plaintiff had been damaged in the sum of $5,000, but it further found that the cause of action was barred for failure to commence the action within six months from the implied denial by the county of a claim for damages as provided by section 4078 of the Political Code.

The appellant has devoted the greater part of his brief to an attempt to show that the finding of negligence is supported by the evidence, but the respondent answers correctly that the question of negligence is not at issue on this appeal as it cannot attack the finding since it is not a party aggrieved by the judgment.

Appellant also contends that the amount of the judgment is inadequate. To sustain the contention he cites a number of cases wherein judgments for the death of a minor child ranging in amount from $7,833 to $15,000, have been held to be not excessive.

The principal question presented is the statute of limitations. The trial court held that the action was barred, and this issue depends upon the interpretation of the code section relating to a failure of the supervisors to act upon the claim. Section 4078 of the Political Code provides: “If the board refuse or neglect to allow or reject a claim or demand for ninety days after the same has been filed with the clerk, such refusal or neglect may, at the option of the claimant, be deemed equivalent to a final action and rejection on the ninetieth day, and a claimant dissatisfied with the rejection of his claim or demand, or with the amount allowed him op