Jackson v. City of Santa Monica

In this case the opinion heretofore filed was -recalled and a rehearing was ordered by the court of its own motion for the consideration of questions of law which were not presented in the briefs or decided by the court, but which were nevertheless presented by the record. They are questions which must necessarily arise frequently and which, for reasons which will appear, we believe should be considered by the court at this time.

Plaintiff was injured while a passenger in a motor bus belonging to the City of Santa Monica and being operated by its employee Dawes. This action, which was against the city alone, went to trial upon the complaint and the answer of the city, which alleged as a special defense that plaintiff had not filed with the city or with the employee Dawes any claim or demand on account of his injuries within 90 days after

The questions now to be considered and which have been argued and briefed by counsel are the following: Does said Act 5150 relate to the liability of municipalities and claims thereunder, and if it purports so to do, is the title of the act sufficient to embrace the provisions which relate to such liability and claims at all, and is it sufficient to embrace the subject of claims of liability not arising out of injuries to person or property resulting from the dangerous or defective condition of streets, public property or buildings?

In the acts to which we shall refer, public thoroughfares, buildings and property are mentioned, as well as public corporations and political subdivisions to which the various acts relate. When' we speak of streets hereafter, it may be understood that we mean also highways, buildings, parks, grounds, public works and public property, and when we refer to cities, it may be understood that we mean municipalities, counties, cities and counties, school and other districts, but not the state of California. We shall refer to attorneys for such public corporations as city attorneys.

The title of the act reads as follows: “ACT 5150. An act relating to the liability in damages of officers of municipalities, counties, cities and counties, school districts, and the state of California, in the case of injuries to persons or property resulting from the defective or dangerous condition of public streets, highways, bridges, buildings, works or property, and alleged to be due to the negligence or carelessness of such officers; prescribing the duties of claimants in such cases, and authorizing the state and such public or g-inm-public corporations to take out and pay for insurance to protect their officers against such liability.”

Section 1 of Act 5150 reads as follows: “Whenever it is claimed that any person has been injured or any property

Section 2 of the act was amended, as stated, in 1933 so as to require city attorneys (including the attorney for the state of California) to defend suits brought against any officer on account of injuries to persons or property ‘ alleged to have been received as a result of the negligence or carelessness of such officer during the course of his service or employment”, as well as suits against officers arising out of the dangerous or defective condition of streets alleged to be due to the negligence of such officer; the words “public property” were defined to include any vehicle, implement or machinery owned by a municipality, county, city and county, school district, ■or the state of California or operated by or under the direction or authority or at the request of any public officer of a municipality, county, city and county, school district, or the state of California acting within the scope of his office, agency or employment”.

The title of the amending act of 1933 reads as follows: “An act to amend sections 2 and 4 of an act entitled (title of Act 5150), approved June 19, 1931, extending the provisions of the act to include suits against employees as well as officers of municipalities, counties, cities and counties, school districts,

The respondent City of Santa Monica contends that although the city alone was sued, plaintiff was required to file a claim with the city and the employee within 90 days after the date of the accident, because the injury to plaintiff was alleged to have resulted from the negligence of an employee in operating a city motor vehicle. The argument of the city rests upon the assumption that Act 5150 relates to the liability of cities and to claims based thereon. In considering this question it becomes necessary to refer to other legislation relating to claims against cities based upon their statutory liability for negligence.

On the same daythat Act 5150 was approved, there was also approved a “companion” act, Statutes 1931, page 2475 (Deering’s General Laws, Act 5149—hereinafter called Act 5149), the title of which reads as follows: “An act relating to the liability in damages of municipalities, counties, cities and counties, and school districts, in the case of injuries to persons or property resulting from the defective or dangerous condition of public streets, highways, bridges, buildings, works or property; prescribing the duties of the officers thereof in such cases, and authorizing such public or qittro-public corporations to take out and pay for insurance to protect them against such liability.” Section 1 of that act requires the filing of claims with the city within 90 days after injuries to person or property caused by the dangerous or defective condition of streets. Section 2 makes it the duty of the attorneys for cities to defend suits brought against cities upon such claims, and section 3 authorizes cities to insure themselves against loss on account of such claims.

The substance of the city’s contention may be briefly stated as follows: Act 5149 relates only to claims against cities arising out of the dangerous or defective condition of streets; Act 5150, as amended, relates to claims against cities and against officers, deputies, assistants, agents and employees, as well, arising out of the dangerous or defective condition of streets and also to claims against cities and such officers, deputies, assistants, agents and employees based upon their alleged negligence generally, including the negligent operation of motor vehicles. It is claimed that Act 5150 must be

There are reasons why we cannot accept either the premise or the conclusion. It is true, of course, that an officer or employee of a city or the state is liable for personal acts of negligence, equally with other individuals, although the liability of officers with relation to alleged negligence in the maintenance of public property is limited by statute. But an officer or employee may be personally liable for his own negligence without a corresponding liability on the part of the city in whose employ he may be. The city is liable only when the facts of the case meet the conditions of the city’s statutory liability. Act 5150 (secs. 1 and 2), in its reference to claims of negligence on the part of officers, was not limited to such acts as were committed within the scope of their service or employment, nor was such limitation accomplished, although it was perhaps attempted by the amending act of 1933 in defining the word “officer” as including agents and employees acting within the scope of their employment. Claims against state officers or employees were required to be filed with the Governor of the state, as well as with the officer or employee. While there is liability on the part of the state for the negligence of its officers or employees in the operation of motor vehicles (Vehicle Code, see. 400, Stats. 1935, chap. 27), there is no general liability as there is in the case of cities, counties and other political subdivisions for -negligence in the maintenance of public property (23 Cal. Jur. 580), nor as in the case of school districts for negligence of officers, agents and employees generally. (School Code, sec. 2.801, as amended by Stats. 1931, p. 2487.) Yet the act makes

A comparison of Acts 5149 and 5150 will disclose that each act covers the subject of a certain class of claims in the same manner, Act 5149 as to claims against cities, and Act 5150 as to claims against officers. The former relates and is limited to the matter of claims arising under Statutes 1923, page 675 (Deering’s Gen. Laws, Act 5619), by which liability of public corporations, including cities, was created, for injuries to person or property resulting from the dangerous or defective condition of public streets. The latter was clearly intended to relate to claims against .officers of cities, with relation to the dangerous or defective condition of public streets, which, while it existed independently of statute (Doeg v. Cook, 126 Cal. 213 [ 58 Pac. 707 , 77 Am. St. Rep. 171 ]), was limited by Statutes 1911, page 1115, replaced by Statutes 1919, page 756 (Deering’s Gen. Laws, Act 5618).

The title of Act 5150 refers exclusively to the liability of officers arising out of the defective or dangerous condition of streets, etc., and alleged tote due to the negligence or carelessness of such officers. It has relation to the liability of officers which had been the subject of previous legislation, namely, liability in connection with the maintenance of public property as limited and defined by said Act 5618, and this was a distinct and separate liability from that of cities created by said Act 5619. Section 1 of Act 5150 relates specifically to the liability of officers arising out of the dangerous or defective condition of streets.' Had section 1 stopped there, it could not have been doubted that Act 5150 applied solely to the liability of officers corresponding to the liability of cities, upon which claims were required to be filed under Act 5149. Turning to section 3 of Act 5150, we find that it authorizes cities (and the state) to insure their officers only against liability arising out of the dangerous condition of streets and due to the negligence of the officers, thus conforming to the title of the act, and providing for the insurance of officers at public expense against the liabilities which cities could insure themselves against under the provisions of section 3 of Act 5149. So far the acts are parallel (except for the inclusion of state officers in Act 5150) and the subjects to which they relate are clear and distinct, one relating to the liability of cities and the other to the liability of officers.

Except for the use of “and/or”, Act 5150 would have related exclusively to claims arising out of the dangerous or defective condition of streets. It may be assumed that in such eases, where an officer would be liable the city also would be liable. To meet situations where the joint liability was sought to be enforced, two acts were passed. Act 5150 would have had no existence if cities alone were to be charged with liability, and Act 5149 would have been unnecessary if Act 5150 had been understood as applying to the liability of cities. We must give effect to both acts if that can be done, which is not possible if we construe Act 5150 as applying to all eases covered by Act 5149. The legislature clearly did not so intend.

The legislature evidently had grave doubt as to what interpretation might be put upon the expression “and/or”, for in 1933 when section 2 was amended it was clearly provided that city attorneys (or the attorney for the state) should defend suits against officers in all cases of alleged negligence during the course of their service or employment. But section 1 of Act 5150 was not amended and still remains in its former confused state and subject to the uncertainties we have

When the title of the 1933 amendment is read and the scope of the amendments of Act 5150 is considered, it becomes increasingly apparent that the legislature did not at the time of the amendment have in mind the liability of cities (or the state), for the provisions of the act are extended to include suits against employees, as well as suits against officers, in the eases authorized by Act 5150 and to suits against officers and employees for alleged negligence or carelessness while engaged in the public service, and the liability of cities (or the state) is neither directly nor indirectly mentioned or suggested.

The foregoing reasons persuade us that the purposes of Act 5150 were to prescribe rules of procedure for the enforcement of claims against officers, to provide for the defense of suits for damages against officers, and to authorize the insurance of officers at public expense; the purpose was not to lay out procedure for the enforcement of negligence claims against cities or the state. The filing of claims against

• officers with cities or the state was required only for the information of city or state authorities. Therefore, under the acts in question, where a city, but not an officer thereof, is charged with liability, a claim need be filed with the city only in the cases specified in Act 5149.

There is another reason for our conclusions, which we deem controlling. To give the act the construction contended for by the city would bring it into conflict with article IV, section 24, of the Constitution, which provides that the subject of an act shall be expressed in its title. The subject of the liability of municipalities (or the state) is not expressed in the title of the act nor in the title of the amending

In Brunson v. City of Santa Monica, 27 Cal. App. 89 [ 148 Pac. 950 ], the statute of 1911, to which we have already referred, was under consideration. The title of the act read, “An act relating to the liability of public officers for damages resulting from defects or dangers in streets, highways, public buildings, public work or property. ’ ’ In the body of the act it was sought to fasten a liability on counties, cities and cities and counties in eases of injuries arising out of the dangerous or defective condition of streets, highways, public buildings, public work or property. In holding the title of the act to be insufficient to cover the liability of public corporations, the court, speaking through Mr. Justice Conrey, said: “Here we have an act which in its title purports to deal with the liability of public officers for damages resulting from certain specified causes. This cannot by any process of reasoning be made to include the subject of liability of the public corporations in whose service such officers may be. The act is void as to any purported legislation therein contained attempting to create a new rule of liability as against such corporations. ’ ’ Of this ease the Supreme Court said, in Heron v. Riley, 209 Cal. 507 [ 289 Pac. 160 ] : “The title of the act there involved was unquestionably misleading and insufficient, for it very definitely intimated that the act related solely to liability of public officers, thus effectively precluding any thought or idea that the body of the act dealt with the liability of the public corporations represented by such officers.” Thus the Supreme Court, by approving the holding in the Brunson case, which distinguished between the liability of officers and the liability of public corporations, has made the latter case a controlling authority.

In Heron v. Riley, supra, where the present question was fully discussed, the title of an act which added section 1714% to the Civil Code was under consideration. The title related “to negligence upon the part of officers, agents and employees of the state, counties, cities and counties, municipal

The defendant city contends that Brunson v. City of Santa Monica, supra, is not in point because in that case matters of substantive law were under consideration, whereas Act 5150 relates merely to matters of procedure with reference to claims arising out of the liability of public officers. The argument again is that if an officer, deputy, agent, assistant or employee is liable, his superior, the city or other political subdivision in whose service he is, must also be liable, and that therefore the title of the act, relating to matters of procedure affecting claims arising out of the liability of public officers, is broad enough to permit of legislation in the body of the act with reference to procedure as to claims arising out of the liability of the corporations in whose service the officers may be. We do not agree that there is less distinction between the matter of procedure to enforce the liability of cities and the matter of procedure to enforce the liability of city officers than there is between the liabilities themselves. Nor is it less important that a statute relating to procedure should bear a title sufficient to put the reader on notice as to the subject-matter covered by the text. The title

The title of Act 5150 is deficient in another respect. It relates only to the liability of officers for negligence in connection with the dangerous or defective condition of streets. General claims of negligence are not within its scope. The provisions of the original act relating to claims of negligence of classes other than the single one referred to in the title are therefore ineffectual, for the same reasons given on the point last discussed. The amending act of 1933 did not cure the defect in the original title. It does relate to the defense of suits against officers and employees arising out of alleged negligence while in public service, but the matter of presenting or filing claims is not touched upon in the title nor is it covered in the text. If the definition of the word “property” be carried into the title of Act 5150 and be read as including motor vehicles, it still relates only to the dangerous or defective condition of property and not to its operation. In reading the titles of the original and of the amending acts we find nothing therein to indicate that the texts of the acts relate to the filing of claims at all, except in cases arising out of negligence in connection with the defective or dangerous condition of streets.

If the title of Act 5150 should be held sufficient to embrace the texts of the act and of the amending act, with as great-propriety it might be urged that it would be necessary for •one seeking to hold the state liable for the negligent operation of a motor vehicle by a state officer or employee, to present a claim to the officer or employee and also to the Governor of the state, within 90 days after the injury, or be barred from all recourse against the state. The matter of the liability of the state in such a case is a subject which is not expressed in the title of the act.

As further illustrating the inadequacy of the titles of the two acts, it may be pointed out that Act 5150 authorizes the insurance of officers against claims arising out of their alleged negligence in connection with streets. The text of the act follows the title in this matter. Then by the 1933 act

Such expression as the Constitution requires in the title of an act, we apprehend, is a statement of the general purpose of the act in language which would convey to the minds of legislators or to members of the public, whose rights are governed by the provisions of the act, a fair conception of the scope of the legislation. If the wording of the title is such as would deceive or mislead the mind of the average reader as to the subject-matter of the legislation, then we think the title does not comply with the constitutional requirement, even though the subject-matter might by intricate processes of reasoning be divined by legal experts or rhetoricians.

We hold, therefore, that plaintiff was not required by Act 5150 to file a claim with the city or to present it to the city employee before he could maintain this action, and that the special defense of the City of Santa Monica, alleging the failure of plaintiff to present such a claim was not a sufficient defense to the action. The court therefore erred in overruling plaintiff’s demurrer to such special defense. The judgment is reversed.

York, Acting P. J., and Doran, J., concurred.

A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 19, 1936.