Myers v. Hopland Union Elementary School District

COATS, J., pro tem.

The plaintiff brings this action through his guardian

ad litem.

He was a pupil in the Hopland Union Elementary School and was of the age of six years when he was injured by a fall from the schoolhouse porch. The action is predicated upon the claim that the school property was in a dangerous and defective condition because there was no railing around the porch, and upon the carelessness and negligence of the trustees in allowing this condition to exist. The court made no findings upon these issues but did specifically find that no verified claim for damages was presented to the board of trustees of the school district or to any officer, or clerk or secretary thereof within ninety days after the accident, and thereupon rendered judgment for the defendant. The appeal is upon the judgment roll.

The right to maintain an action of this nature is authorized by the provisions of the act of June 13, 1923 (Stats. 1923, p. 675) and section 2.801 of the School Code.

This right only exists by virtue of statutory enactment and the legislature having granted the right may also prescribe the procedure by which it may be enforced. This it has done by the act of June 19, 1931 (Stats. 1931, p. 2476), Avhich provides that whenever it is claimed that a person has been injured as a result of the dangerous or defective condition of a public building, grounds, works or property of a school district, or of the carelessness or negligence of a public officer of a school district, a verified claim for damages shall be presented in writing and filed with such officer and the clerk or secretary of the legislative body of the school district within ninety days after such accident. The provisions of this section are mandatory and a person has no right 1o maintain such an action unless he complies

[592]

therewith.

(Thompson

v.

City of Los Angeles,

140 Cal. App. 73 [35 Pac. (2d) 185].) Plaintiff, although a minor, is bound by its provisions as there is nothing in the act excepting minors from its operation.

(Phillips