Singleton v. Bonnesen

• Decision Date: 07 March 1955
• Citation: 280 P.2d 481,131 Cal.App.2d 327
• Court: California Court of Appeals Court of Appeals
• Parties: Lotus SINGLETON, George David Singleton, a minor, by and through Lotus Singleton, his guardian an litem; and Darlene Rae Howard, a minor, by and through Lotus Singleton, her guardian ad litem, Plaintiffs and Appellants, v. Mary Anne Catherine BONNESEN, Administratrix of the Estate of George Abbott Williams, Mary Anne Catherine Bonnesen, Administratrix of the Estate of Catherine Alice Williams; Frank Stower, Ina Violet May Stower; the County of Glenn, a political subdivision of the State of California; and Lyle Sale, individually, and as an employee of the County of Glenn, Defendants, County of Glenn, a political subdivision of the State of California, and Lyle Sale, individually, and as an employee of the County of Glenn, Respondents. Civ. 8502.

Page 481

280 P.2d 481

131 Cal.App.2d 327

Lotus SINGLETON, George David Singleton, a minor, by and through Lotus Singleton, his guardian an litem; and Darlene Rae Howard, a minor, by and through Lotus Singleton, her guardian ad litem, Plaintiffs and Appellants, v. Mary Anne Catherine BONNESEN, Administratrix of the Estate of George Abbott Williams, Mary Anne Catherine Bonnesen, Administratrix of the Estate of Catherine Alice Williams; Frank Stower, Ina Violet May Stower; the County of Glenn, a political subdivision of the State of California; and Lyle Sale, individually, and as an employee of the County of Glenn, Defendants County of Glenn, a political subdivision of the State of California, and Lyle Sale, individually, and as an employee of the County of Glenn, Respondents.

Civ. 8502.

District Court of Appeal, Third District, California.

March 7, 1955.

J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, Chico, for appellants.

Clyde H. Larimer, Dist. Atty., Willows, and Rich, Carlin & Fuidge, Marysville, for respondents.

FINLEY, Justice pro tem.

This is an appeal by plaintiffs from a judgment in favor of defendants County of Glenn, a political subdivision of the State of California, and Lyle Sale, individually and as an employee of the County of Glenn. Judgment was entered by the trial court after the demurrer by these defendants to plaintiffs' second amended complaint had been sustained and plaintiffs failed to amend.

Plaintiffs are the surviving heirs and dependents of Hal A. Singleton, deceased, who was sheriff of Glenn County and who met his death in an automobile collision while riding in a county owned automobile driven at the time by defendant Lyle Sale, a deputy sheriff under Singleton.

The first amended complaint contains three causes of action, one on behalf of each plaintiff. In each cause of action it is alleged that Hal A. Singleton, was the sheriff of Glenn County and that he was riding as a passenger in an automobile owned by Glenn County which was being negligently driven and operated by Lyle Sale, undersheriff of Glenn County; that as a result of said negligence there was a collision causing the death of Hal A. Singleton, and that at the time thereof, 'Hal Singleton and Lyle Sale were both acting within the scope of their employment as employees, servants, agents, and representatives of the county of Glenn, state of California.' There is no mention made in the complaint of Workmen's Compensation insurance or the State Employees' Retirement System.

Respondents' demurrer so far as we are concerned with it here is on the general ground that the complaint does not state facts sufficient to constitute a cause of action against the demurring defendants Lyle Sale and Glenn County.

The trial court sustained this demurrer on the ground that an action based upon the negligence of the decedent's co-employee, the respondent Sale, would not lie against either him or their common employer, respondent Glenn County, since appellants' exclusive remedy, if any, was under the Workmen's Compensation Act.

Under the provisions of section 3351(b) of the Labor Code Hal Singleton as sheriff of Glenn County was an 'employee' of said county. Also a deputy appointed by a sheriff is an employee of the county. County of Monterey v. Industrial Accident Comm., 199 Cal. 221, 248 P. 912, 47 A.L.R. 359. Since Singleton and Sale were both employees of Glenn County, a common employer, it necessarily follows that they were co-employees. As co-employees we know of no rule prohibiting a suit by one against the other for damages on account of negligence, even though their common employer may be protected from such a suit by provisions of the Workmen's Compensation Act. Section 1981 of the Government Code does not exclude such actions and in Ward v. Jones, 39 Cal.2d 756, 249 P.2d 246, wherein the dependents of a deceased employee of the City of Los Angeles brought an action against their decedent's co-employees alleging that their negligence was the cause of his death, a judgment of dismissal by the trial court was affirmed upon the sole ground that claims had not been filed pursuant to the provisions of Government Code section 1981. No suggestion was made that the action was not otherwise proper. See also Wallace v. Pacific Electric Railway Co., 105 Cal.App. 664, 288 P. 834; Baugh v. Rogers, 24 Cal.2d 200, 148 P.2d 633, 152 A.L.R. 1043; and Thompson v. Lacey, 42 Cal.2d 443, 267 P.2d 1.

Going further, the relationship of respondent Sale to the decedent Hal A. Singleton was that of a 'person other than' his employer, within the purview of section 3852 of the Labor Code which sanctions an action for damages for injury or death against 'any person other than the employer.' See note on page 445 of Thompson v. Lacey, supra, 42 Cal.2d 443, 267 P.2d 1, 2. The fact that Singleton was Sale's superior officer would not constitute a defense. In Baugh v. Rogers, supra, 24 Cal.2d 200, at page 214, 148 P.2d 633, at page 641, we find this language: 'The employee's right to recover against a third person is not affected by the fact that the 'person other than the employer' is not a stranger but has entered into a consensual legal relationship with the employer. Wallace v. Pacific Electric Ry. Co. (1930), 105 Cal.App. 664, 668, 288 P. 834; Merino v. Pacific Coast Borax Co. (1932), 124 Cal.App. 336, 338, 341, 12 P.2d 458.'

Here appellants' right to recovery would only be barred by proof of actual personal negligence upon the part of decedent. The personal negligence, if any, of respondent Sale would not be imputed to Hal Singleton. As the rule is stated in Ledgerwood v. Ledgerwood, 114 Cal.App. 538, at pages 542-543, 300 P. 144, at page 146: "To do so would be to permit one guilty of negligence to take refuge behind his own wrong. The situation when the action is brought by one member...