Saldana v. City of Los Angeles

DORAN, J. According to appellant’s brief this is an appeal by the defendant city “from a judgment in of the plaintiff for damages for bodily injuries and property damage caused by a collision between plaintiff’s automobile and motor vehicle driven by an employee of the defendant within the scope of his employment. The sole question in[215]volved is whether the plaintiff complied with the statutory requirements for the filing of a claim as a condition precedent to the maintenance of the action.” The action herein was against the city, not against the employee.

The complaint, as amended at the trial, substantially alleges that the collision in question, resulting from the employee’s negligence, occurred on November 22, 1945; that on November 26, 1945, respondent filed a written claim for damages with the city clerk, specifying the name and address of respondent, the nature of the injury and damage, and a description of the manner in which the collision occurred. It is not alleged, however, that any claim was filed with the employee.

It appears from the record that the employee, Oscar Gartrell, while driving a loaded rubbish truck in a southerly direction on Los Angeles Street near Commercial Street in Los Angeles, struck the rear of plaintiff’s automobile. Shortly thereafter, according to appellant’s brief, “respondent’s daughter was given the name and address of the driver of the rubbish truck and thereafter talked to the driver on the telephone.” The driver was not a party to the action, and, as hereinbefore indicated, the only written claim was that filed with the city clerk.

The trial court found that the collision and respondent’s damage were proximately caused by the employee’s negligent operation of the truck while the latter was acting within the scope of employment; further, that the claim was duly filed with the city of Los Angeles as alleged in the complaint. Judgment was entered for the respondent in the sum of $2,500 for personal injuries, $477 for medical and hospital expenses, and $160 for damage to respondent’s automobile.

Only one question is presented by this appeal, stated as follows in the brief filed by the appellant city; “May an action for damages caused by the negligent operation of a motor vehicle by an employee of a municipal corporation acting within the scope of his employment, be maintained against the municipal corporation when it is neither alleged nor proved that a written verified claim for damages was presented to and filed with such negligent employee within ninety days after the negligent act was committed?”