Kangieser v. Zink

• Decision Date: 26 July 1955
• Citation: 134 Cal.App.2d 559,285 P.2d 950
• Parties: Henry F. KANGIESER, Paintiff and Appellant, v. Howard A. ZINK, First Doe, Second Doe, Third Doe, Fourth Doe and Fifth Doe, Hartford Accident & Indemnity Company, Defendants and Respondents. Civ. 16352.
• Court: California Court of Appeals Court of Appeals

Page 950

285 P.2d 950

134 Cal.App.2d 559

Henry F. KANGIESER, Paintiff and Appellant, v. Howard A. ZINK, First Doe, Second Doe, Third Doe, Fourth Doe and Fifth Doe, Hartford Accident & Indemnity Company, Defendants and Respondents.

Civ. 16352.

District Court of Appeal, First District, Division 2, California.

July 26, 1955.

Morgan & Beauzay, San Jose, for appellant.

Robert E. Michalski, City Attorney, Palo Alto, for respondents.

DOOLING, Justice.

Plaintiff appeals from a judgment of nonsuit in an action for false arrest and false imprisonment. The action was tried only against the chief of police of the City of Palo Alto and the company which furnished his official bond.

Appellant suffered a paralytic stroke at about 8 a. m. while driving to work in his truck. He lost the use of his legs, hip and voice. He was unable to take his foot off the gas pedal so he turned off the ignition and drove his truck into a gasoline station. He remained there helpless in his truck until about 10 a. m. when the proprietor of the station called the police. A police officer answered the call and from appellant's appearance concluded that he was intoxicated. He was arrested and taken to the Palo Alto Police Station where he was booked on a charge of violating section 502, Vehicle Code (driving while intoxicated). The police officer got permission from the respondent Zink, as chief of police, to take appellant to the Palo Alto Hospital for a blood-alcohol test, and this was done. The blood specimen was taken by a technician who came to the police car for that purpose. Appellant was then locked up in a cell where he remained until 6 p. m. when he was released to his brother and taken to a hospital. During his confinement appellant was not taken before a magistrate although there was one in the same building.

The parties are agreed that under Michel v. Smith, 188 Cal. 199, 205 P. 113, 114, and the cases which have since followed it, a chief of police is not personally liable for the tortious acts of his subordinates 'unless he has directed such acts to be done, or has personally co-operated therein.' Later cases have added to the statement the word 'countenanced' so as to place liability on the superior officer if he "has directed or countenanced the tortious acts * * * or has co-operated therein." Noack v. Zellerbach, 11 Cal.App.2d 186, 188, 53 P.2d 986, 987; Reed v. Molony, 38 Cal.App.2d 405, 410, 101 P.2d 175.

We need not concern ourselves with the question whether the original arrest was legal because there is no showing in the record that respondent Zink at any time knew of the circumstances surrounding that arrest. Without such knowledge he could not be said to have 'countenanced' it or 'cooperated' in it.

Appellant's main argument is that in any event the failure to bring him before a magistrate from about 10 a. m. to 6 p. m. was sufficient to raise a jury question as to whether he was brought before a magistrate without unnecessary delay as required by Penal Code, section 849. Such unreasonable delay would make his confinement false imprisonment. Kaufman v. Brown...