Rubinow v. San Bernardino County

• Decision Date: 24 March 1959
• Citation: 336 P.2d 968,169 Cal.App.2d 67
• Court: California Court of Appeals Court of Appeals
• Parties: Sydney Ruth RUBINOW, etc. et al., Plaintiffs and Appellants, v. COUNTY OF SAN BERNARDINO, etc. et al., Defendants and Respondents. Civ. 5913.

Page 968

336 P.2d 968

169 Cal.App.2d 67

Sydney Ruth RUBINOW, etc. et al., Plaintiffs and Appellants, v. COUNTY OF SAN BERNARDINO, etc. et al., Defendants and Respondents.

Civ. 5913.

District Court of Appeal, Fourth District, California.

March 24, 1959.

John Paul Jones, D. W. Brobst, Oakland, for appellants.

Albert E. Weller, County Counsel, J. B. Lawrence, Deputy County Counsel, San Bernardino, for respondents.

SHEPARD, Justice.

This is an appeal from a judgment of dismissal of plaintiffs' complaint following the sustaining of a demurrer and the additional order at plaintiffs' request that it be 'without leave to amend.'

In general substance the complaint alleges that 28 March 1956, Wynn Estelle Rubinow was killed in an automobile accident on Highway 66 near Newberry in San Bernardino County; that the accident was caused by the careless, negligent, reckless, erratic and unlawful driving of one George Moore, Jr. due to said George Moore's drunken and intoxicated condition; 'that at said time and place, said Ford automobile operated by the said George Moore, Jr., as aforesaid, was being operated in the presence of and was being followed and observed by said defendant, Ernest J. Rowland, Deputy Sheriff of said County of San Bernardino, and that said Ernest J. Rowland failed and neglected to faithfully perform his duties, to stop and prevent the violation of the law being committed in his presence by the said George Moore, Jr.'; that as a proximate result of said defendant's negligence the automobile of George Moore, Jr. collided with that of plaintiffs' deceased, causing her death; and that plaintiffs are the surviving husband and minor child of said deceased.

The third cause of action under similar allegations alleges severe injury to Sydney G. Rubinow, Jr., and a fifth cause of action under similar allegations alleges severe injuries to Sydney Ruth Rubinow. The second, fourth and sixth causes of action were abandoned by plaintiffs and are not before us for consideration. Defendants demurred to all cause of action, both generally and specially. The special demurrer sets up a large number of defects in the wording of the complaint, among which are that the complaint does not show whether Rowland could see that the law was being violated by Moore, and whether Rowland could have stopped Moore's alleged violations before the accident occurred.

Plaintiffs base their contention of liability on the statutory provisions relating to duties of officers, and on the contention that the failure or neglect of an officer to perform his duty with injury to others results in liability. They cite in support thereof Government Code Section 26600 that 'The sheriff shall preserve peace, * * *'; Section 26601, that 'The sheriff shall arrest * * * all persons who attempt to commit or who have committed a public offense'; Penal Code Section 836, that 'A peace officer may * * * without a warrant, arrest a person: 1. For a public offense committed or attempted in his presence'; 5 Cal.Jur.2d 155, to the effect that '* * * there is authority to the effect that where the circumstances require it, the right and duty exist for an officer to make such an arrest before the damage is done * * *'; 21 Cal.Jur. 400, 'it is the duty of the police (peace officer) to watch over the safety of citizens and to guard their person and property from destruction and injury'; Government Code, Section 26685, 'Whenever any action is brought against any sheriff, all deputies * * * upon whose negligence, wilful or wrongful act, or other default the action is based are necessary parties defendant.'

Plaintiffs also quote from Falasco v. Hulen, 6 Cal.App.2d 224, 242, 44 P.2d 469, 477, in support of their position, to the effect that 'Public officers, * * * are not relieved from liability for acts of negligence * * * 'A peace officer is generally held to be personally liable for negligent or wrongful acts causing personal injury or death''. This cited case was one in which the collision was caused by the excessive speed and negligence of a constable driving an automobile on an errand of mercy not technically within the protection afforded to police and fire vehicles on certain emergency calls. Reynolds v. Lerman, 138 Cal.App.2d 586, 292 P.2d 559, was a judgment on conversion where the sheriff allowed certain property under his care on a writ of attachment to be sold under a warehouseman's lien. Osborne v. Schaeffer, 152 Cal.App.2d 56, 312 P.2d 340, was a case in which a trusty appointed by the sheriff to assist in jail administration was alleged to have unlawfully assaulted plaintiff. Hayward Lumber & Investment Co. v. Biscailuz, 47 Cal.2d 716, 306 P.2d 6, was a case in which the sheriff was charged with the breach of a mandatory official duty in that he wrongfully released certain bank deposits from a writ of attachment. Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876, 879, was an arrest for unlawful assembly at a 'hot rod' race, and the court said in holding the officers not liable for making the arrest that 'a public offense is committed in the presence of an officer within the meaning of a statute such as Penal Code, § 836, when 'circumstances exist which would cause a reasonable person to believe that a crime has been committed in his presence.''

Defendants contend that the power of a police officer to arrest and prosecute misdemeans without a warrant is quasi-judicial and discretionary; that there is no judicial authority under common law nor under California Statutes for imposing civil liability for failure to make an arrest without a warrant; and they cite the use of the...