Jackman v. Patterson

McCOMB, J.

From a judgment of dismissal predicatec upon the sustaining without leave to amend of defendants’ general demurrers to plaintiff’s complaint as amended in an action for damages resulting from alleged malpractice, plaintiff appeals.

[256]

The complaint as amended alleged in substance that plaintiff in September, 1938, was a patient in the Los Angeles County General Hospital operated by the County of Los Angeles; and that defendants, physicians employed by said county, treated plaintiff in such a manner as to constitute malpractice, which resulted in serious damage to plaintiff.

This is the sole question necessary for us to determine:

Was there a material allegation to a cause of action lacking in the complaint as amended, since it failed to allege that plaintiff had within 90 days after the alleged acts of malpractice presented a verified claim for damages in writing to defendants and filed a copy thereof with the clerk or secretary of Los Angeles County, as provided in section 1 of Act 5150, Beering’s General Laws, vol. 2, p. 2205?

This question must be answered in the negative. It is conceded that Act 5150 as originally adopted in 1931 was inapplicable to a group of facts such as set forth in the present case. By amendment in 1933 the legislature endeavored to make the act applicable to a situation such as we have here presented, by providing that the act should apply in the cases of injuries to persons or property resulting from the negligence or carelessness of officers employed by counties, etc. However, the amendment was held unconstitutional and inoperative as to a set of facts such as are here presented in

Jackson

v.

City of Santa Monica,

13 Cal. App. (2d) 376, 386 [57 Pac. (2d) 226], for the reason that the title of Act 5150, Leering’s General Laws, failed to express the subject of the amendment to the act, in conformity with the requirements of article 4, section 24 of the Constitution of California.

In attempting to cure the defect in the act as indicated in the case just cited, the legislature in 1937 adopted an act (chap. 269, Statutes [1937]), the title to which read thus: