Rounds v. Brown

VAN DYKE, P. J.

This is an appeal from a judgment notwithstanding a jury verdict rendered in favor of plaintiff. Appellant, as plaintiff below, was injured on September 9, 1949, through the alleged negligent action of respondent Brown, a police officer of the city of Sacramento. Appellant had been charged with violation of section 502 of the California Vehicle Code and was injured while being held in custody responsive to that charge. After his injury he pleaded guilty to the charge and was sentenced to pay a fine or to serve a specified jail term. He served out the jail sentence and within 90 days after his release he presented to and filed with respondent Brown his claim of negligent injury. He then began this action. In his complaint he named as defendants the respondent, and three fictitious defendants, making no service, however, as to any of the three.

By his complaint appellant alleged that Brown was at the time appellant received his injuries

“a

qualified and acting police officer of the City of Sacramento . . . engaged in the performance of his assigned duties as a police officer and acting within the scope and terms of said employment.” It was further alleged that on the 4th day of May, 1950, the plaintiff’s claim had been presented to the respondent, but in this connection it was further alleged that from the time the injuries had been received and until within 90 days of the presentation of said claim plaintiff had been imprisoned on a criminal charge. The motion for judgment notwithstanding the verdict was granted by the trial court upon the ground that the failure of the plaintiff to present his claim to the respondent within 90 days of the injury was fatal to his action.

The argument in support of the appeal falls into two main classifications: 1. That since the action was not against the city and was solely brought against the respondent officer of the city, the provisions of section 1981 of the Government Code were not applicable. This section requires presentation of a claim for negligent injury to a public officer or employee claimed to be liable, within 90 days after injury. 2. That, assuming those provisions to be applicable, still the claim was

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presented in time because the imprisonment of appellant rendered him incapable of presenting his claim and extended his time to do so. Since the opening brief of appellant was filed, the Supreme Court handed down an opinion in the case of