Payne v. Bennion

• Decision Date: 03 March 1960
• Citation: 3 Cal.Rptr. 14,178 Cal.App.2d 595
• Court: California Court of Appeals Court of Appeals
• Parties: Elizabeth C. PAYNE, Plaintiff and Appellant, v. Leora E. BENNION and Gerald L. Jacobus, as Superintendent of Schools of the County of King, Defendants and Respondents. Civ. 6022.

Page 14

3 Cal.Rptr. 14

178 Cal.App.2d 595

Elizabeth C. PAYNE, Plaintiff and Appellant, v. Leora E. BENNION and Gerald L. Jacobus, as Superintendent of Schools of the County of King, Defendants and Respondents.

Civ. 6022.

District Court of Appeal, Fourth District, California.

March 3, 1960.

Rehearing Denied March 28, 1960.

Hearing Denied April 26, 1960.

Clarence H. Wilson, Hanford, for appellant.

Maddox, Abercrombie, Kloster & Jacobus, Visalia, for respondents.

COUGHLIN, Justice.

On January 7, 1958 the plaintiff, as the surviving widow and sole heir at law of Roy A. Payne, who died on January 10, 1957, commenced this action to recover damages for his allegedly wrongful death. Her verified complaint alleged that, at all times mentioned therein, the defendant Bennion was employed by the defendant Jacobus, as Superintendent of Schools of the County of Kings, in the capacity of Supervisor of Rural Schools, and was acting in her capacity as such supervisor; that the said Bennion negligently operated her automobile proximately causing an accident which resulted in the death of Mr. Payne; and that plaintiff duly filed a claim with the defendant Jacobus, as such superintendent of schools, on April 10, 1957. The claim in question was verified and stated that Bennion was an employee of Jacobus as Superintendent of Schools, in the capacity of Supervisor of Rural Schools, and that Bennion was acting within the scope of her employment as such supervisor at the time the accident in question happened.

The defendants demurred to this complaint. After hearing, the demurrer of the defendant Jacobus was sustained without leave to amend, and the demurrer of the defendant Bennion was sustained with leave to amend within 10 days.

Within the 10-day period the plaintiff moved the court for permission to file an amended complaint against both defendants, setting forth two causes of action. The first cause of action alleged that Bennion was employed by Jacobus, as Superintendent of Schools, in the capacity of Supervisor of Rural Schools, and contained averments respecting this employment which are considered hereafter; that the defendant Bennion was acting as such supervisor at the time of the accident in question; and that plaintiff filed a claim with the defendant Jacobus on April 10, 1957. Other proper allegations of negligence, proximate cause and damage were included. The second cause of action incorporated the allegations of the first cause of action with certain exceptions. The allegations respecting the relationship between the defendant Bennion and the defendant Jacobus were limited to a statement that the former was employed by the latter, as such superintendent, in the capacity of supervisor of rural schools under the authority of Sections 9505 and 9515 of the Education Code ¹. The allegation in the first cause of action, that at the time of the accident the defendant Bennion was acting within the scope of her employment, was omitted. To the contrary, in the second cause of action the plaintiff alleged on information and belief that, at the time of the accident in question, the defendant Bennion was not acting in her capacity as such supervisor.

On October 30, 1958 the court made its order denying plaintiff's motion for permission to file the foregoing amended complaint.

On December 11, 1958 the court entered judgment in favor of the defendants and against the plaintiff, reciting the order sustaining the demurrer of the defendant Jacobus without leave to amend and the failure of the plaintiff to file an amended complaint within the time prescribed by the order sustaining the demurrer of the defendant Bennion with leave to amend. From this judgment the plaintiff appeals.

The primary question for determination on appeal is whether the trial court abused its discretion in denying leave to file plaintiff's amended complaint. Disposition of this question requires a decision as to whether the proposed amended complaint, under the circumstances, stated a cause of action against either of the defendants.

The defendant Jacobus contends that he is not liable for any damage caused by the negligence of the defendant Bennion. He relies on the general rule that a 'public officer is not responsible for the acts or omissions of subordinates properly employed by or under him, if such subordinates are not in his private service, but are themselves servants of the government, unless he has directed such acts to be done, or has personally co-operated therein,' or 'unless the appointing officer fails to exercise reasonable care in the selection of the appointee.' Michel v. Smith, 188 Cal. 199, 201, 202, 205 P. 113, 114. This is an exception to the doctrine of respondeat superior and has no application to actions for damages resulting from the personal faults of a public officer even though the misconduct of a subordinate may be a contributing factor. Fernelius v. Pierce, 22 Cal.2d 226, 234, 138 P.2d 12. The foregoing general rule has been applied to various employees of public officers. County of Placer v. Aetna Cas. etc. Co., 50 Cal.2d 182, 323 P.2d 753--clerk appointed by justice of the peace; Hilton v. Oliver, 204 Cal. 535, 539, 269 P. 425, 61 A.L.R. 297--employee appointed by trustees of irrigation district; Sarafini v. City & County of San Francisco, 143 Cal.App.2d 570, 300 P.2d 44--police officer acting under police lieutenant; Kangieser v. Zink, 134 Cal.App.2d 559, 285 P.2d 950--police officer appointed by chief of police; Marshall v. County of Los Angeles, 131 Cal.App.2d 812, 281 P.2d 544--employee of sheriff; Abrahamson v. City of Ceres, 90 Cal.App.2d 523, 203 P.2d 98--police officer appointed by chief of police; Reed v. Molony, 38 Cal.App.2d 405, 409, 101 P.2d 175--special investigator employed by State Medical Board; Downey v. Allen, 36 Cal.App.2d 269, 97 P.2d 515--police officer appointed by chief of police; Van Vorce v. Thomas, 18 Cal.App.2d 723, 64 P.2d 772--deputy marshal of municipal court appointed by marshal; Bower v. Davis, 13 Cal.App.2d 678, 57 P.2d 574--police officer appointed by chief of police; Noack v. Zellerbach, 11 Cal.App.2d 186, 53 P.2d 986--deputy fish and game commissioner appointed by members of fish and game commission; Shannon v. Fleishhacker, 116 Cal.App. 258, 261, 2 P.2d 835--park superintendent, assistant park superintendent and manager of playground appointed by members of park commission; Whiteman v. Anderson-Cottonwood Irrigation District, 60 Cal.App. 234, 212 P. 706--employee of irrigation district appointed by directors of district.

A so-called exception to this general rule is noted in cases involving the relationship of sheriff and deputy sheriff. Foley v. Martin, 142 Cal. 256, 71 P. 165, 75 P. 842; Black v. Bringhurst, 7 Cal.App.2d 711, 46 P.2d 993; Silva v. MacAuley, 135 Cal.App. 249, 26 P.2d 887, 27 P.2d 791. The basis for this exception is that the 'deputy is not the agent or servant of the sheriff, but is his representative, and the sheriff is liable for his acts as if they had been done by himself.' Michel v. Smith, 188 Cal. 199, 202, 205 P. 113, 114; County of Placer v. Aetna Cas. etc. Co., 50 Cal.2d 182, 323 P.2d 753. The foregoing described relationship between the sheriff and his deputy has been referred to as a fiction. Van Vorce v. Thomas, 18 Cal.App.2d 723, 725, 64 P.2d 772. In substance, it is held that the deputy is acting in the private service of the sheriff and in his name and stead. A test to distinguish between the status of a subordinate of a public officer acting as a servant of the government and that of such subordinate acting in the former's private service is noted in a later statement of the general rule that 'public officers are not civilly liable for torts of deputies, when the latter are themselves statutory officers or not under the superior's unrestricted control or right of hiring and discharging.' People v. Standard Accident Ins. Co., 42 Cal.App.2d 409, 411, 108 P.2d 923, 925; County of Placer v. Aetna Cas. etc. Co., 50 Cal.2d 182, 188, 323 P.2d 753. It is upon this later statement of the rule that plaintiff based her cause of action against Jacobus as Superintendent of Schools, contending that Bennion, as Supervisor of Rural Schools, was under the superintendent's 'unrestricted control or right of hiring and discharge.' Rather than extending the deputy sheriff exception, the later statement of the general rule points out a limitation on the application of that exception. A deputy sheriff appointed by the sheriff from a selected list subject to civil service regulations is not within the so-called exception. A sheriff is not liable civilly for the torts of such a deputy. Lorah v. Biscailuz, 12 Cal.App.2d 100, 54 P.2d 1125. This limitation is expressly recognized by statute. Insofar as pertinent, Section 1953.6 of the Government Code provides:

'No officer of a county * * * shall be personally liable for the negligent act or omission of any deputy or employee serving under him and performing the duties of his office, where the appointment or qualification of such deputy or employee is required to be and has been approved by the local governing body or board of supervisors, or by the civil service commission * * *.'

It is not the intention of this code section to impose liabilities upon a public officer but, rather, to define a limitation on his liability because it further provides:

'Nothing in this section shall be interpreted as placing any liability upon the principal officer for the act of a deputy or employee unless such liability is otherwise imposed upon the principal officer by law * * *.' Sec. 1953.6, Gov.Code.

The whole tenor of the development of the law in the area under consideration has been to restrict the application of the so-called exception to the general rule. 'A sound public policy supports the general rule of non-liability of superior public officers for the torts of inferior civil service officers and employees and...