Bossert v. Stokes

SCHOTTKY, J.

On November 1, 1955, Charles Eugene Stokes, a member of the Board of Supervisors of Butte County, while operating a motor vehicle, of which he was the registered owner, was involved in a collision with a motor vehicle operated by Mrs. Ella Bossert. Stokes was killed and Mrs. Bossert was injured. On April 6, 1956, both Mr. and Mrs. Bossert filed their claims against the estate of Charles Eugene Stokes. On April 16, 1956, each of them filed with the county clerk a duly verified claim against the county. The claims were rejected.

[459]

On Hay 7, 1956, this action was commenced against Butte County, the estate of Charles Eugene Stokes and Beulah May Stokes individually. It was alleged in each count that at the time of the accident the decedent “was a duly elected, qualified and acting supervisor of the County of Butte . . . and ... at the time and place ... as such supervisor he was an officer, agent, servant and employee of the County of Butte acting within the scope of his office and employment.’’ It was also alleged that the vehicle which the decedent was driving at the time of the accident was owned by him and his wife Beulah May Stokes.

The executors and Beulah May Stokes individually filed an answer in which they admitted the decedent was a supervisor of Butte County and that at the time he was acting within the scope of his employment. The answer alleged further that the vehicle which the decedent was driving had been acquired prior to his marriage to Beulah May Stokes and was his sole and separate property.

The county of Butte demurred to the complaint on the ground that no cause of action was stated because the complaint showed on its face that it was barred by the provisions of section 1981 of the Government Code (now § 801) because the claim was not filed within 90 days after the accident occurred. The demurrer was sustained without leave to amend, and judgment entered in favor of the county. No appeal was taken from this judgment and its propriety is not an issue in this appeal.

Thereafter, the executors were granted permission to amend their answer, and in their amended answer they set up the bar of sections 1980,1981, 1982 and 2003 of the Government Code. They then made a motion for judgment on the pleadings. Plaintiffs sought permission to amend their complaint to eliminate the reference to the allegation that at the time of the accident the decedent was acting within the scope of his employment with the county. The reason given was that the allegation was inserted to assert a cause of action against the county, and since judgment had been given in favor of the county the allegation was superfluous in the causes of action against the other defendants. Beulah May Stokes made a motion for summary judgment. In the affidavit in support of the motion she asserted that the vehicle which her deceased husband had been driving was his sole and separate property. The court granted the motion for judgment on the pleadings