Porter v. Bakersfield & Kern Electric Railway Co.

EDMONDS, J.

I concur in the judgment as to the school district and the railway company, but believe that the court has now construed section 1981 of the Government Code to the serious disadvantage of employees of public bodies and inconsistently with the prior construction of the statute.

I joined in the decision in the Veriddo case because I agree that the Government Code requires a filing of the claim as a “prerequisite to suit,” as was stated in the opinion. The ordinary meaning of “prerequisite to suit” is something which must be done before commencement of the action. The court now holds that a plaintiff has complied with the statute if he filed his claim within 90 days of the accident, although suit may have been commenced upon the day that the accident occurred.

This construction is contrary to one of the reasons for such a claim as stated in the Veriddo case. It was there said that “. . . the Legislature has extended to public officers and employes, who incur liability in the performance of government service, the protection of a claim statute and the privilege of having defended at public expense those damage suits which are enumerated in chapter 6.” (35 Cal.2d at p. 265.) And in Ansell v. City of San Diego, 35 Cal.2d 76, 78 [216 P.2d 455], one of the purposes was stated to be “. . . to provide for the defense of suits for damages against officers, and to authorize the insurance of officers at public expense. ...”

An employee cannot demand legal defense by the public body employing him until a claim is filed. According to the present decision, the employee will be under the burden of providing his own defense until such time as a claim may be filed. Manifestly, such a rule does not extend to the employee the full protection to which this court has held he is entitled. For these reasons, to effectuate the purposes of section 1981 of the Government Code, as previously construed, I would reverse the judgment against C. E. Flynn.

Spence, J., concurred.