Tomlinson v. Pierce

• Decision Date: 17 February 1960
• Citation: 2 Cal.Rptr. 700,178 Cal.App.2d 112
• Court: California Court of Appeals Court of Appeals
• Parties: Richard Harding TOMLINSON and Patricia Kay Tomlinson, minors, by and through their guardian ad litem, Charles Harding, Jr., Plaintiffs and Appellants, v. Verbie L. PIERCE and James K. Kendrick, Defendants and Respondents. Civ. 6028.

Page 700

2 Cal.Rptr. 700

178 Cal.App.2d 112

Richard Harding TOMLINSON and Patricia Kay Tomlinson, minors, by and through their guardian ad litem, Charles Harding, Jr., Plaintiffs and Appellants, v. Verbie L. PIERCE and James K. Kendrick, Defendants and Respondents.

Civ. 6028.

District Court of Appeal, Fourth District, California.

Feb. 17, 1960.

Hearing Denied April 13, 1960.

Truman Campbell and Oren, McCartney, Sells & Fdman, Fresno, for appellants.

Crowe, Mitchell, Hurlbutt & Clevenger, Visalio, for respondents.

GRIFFIN, President Justice.

This appeal involves the propriety of an order sustaining a demurrer to plaintiff's amended complaint without leave to amend. It is alleged therein that plaintiffs-appellants were minors; that their mother and father were killed on January 7, 1957 as the result of the negligence of defendants-respondents; that defendant Pierce was a police officer of Porterville and defendant Kendrick was its chief of police; that about 7:00 p. m. on said day, Pierce was on duty as such officer; that he did then observe, accost and interrogate one Gfeller who was then intoxicated and incapable of safely driving his automobile on a public highway and knew he was about to do so; that he negligently failed to arrest and detain him at that time and allowed him to remain at large in violation of his duty; that about 7:30 p. m., while plaintiff's father was driving his car on Highway 65 in said county, Gfeller, in a drunken condition, drove his car on said highway and collided with plaintiff's father's car causing the death of plaintiff's parents; that the defendant chief of police had the power to discipline or suspend said defendant Pierce for unfitness, known to him, but violated his duty in failing to do so.

Judgment for the alleged damages is sought by plaintiffs. It is also alleged that a proper verified claim was filed in accordance with the law and denied. A demurrer to the amended complaint was sustained without leave to amend. Judgment for defendants followed.

It is plaintiff's contention on appeal that when the officer accosted and interrogated the intoxicated individual who expressed an intent to operate a motor vehicle, the defendant police officer owed a plain and certain duty to that segment of the public then using the highways, and his failure to complete the prompt performance of that duty constituted actionable negligence; that his negligence was the proximate cause of the collision and wrongful death in that it was clearly foreseeable by him that the person released upon the highways in an intoxicated condition might cause injuries or death to some member of the traveling public and that under the doctrine announced in Fernelius v. Pierce, 22 Cal.2d 226, 138 P.2d 12, a cause of action was stated against the chief of police. Citing Noble v. City of Palo Alto, 89 Cal. App. 47, 264 P. 529; Doeg v. Cook, 126 Cal. 213, 58 P. 707; 21 Cal.Jur. 908 sec. 88; Collenburg v. County of Los Angeles, 150 Cal.App.2d 795, 310 P.2d 989; Larue v. Davies, 8 Cal.App. 750, 97 P. 903; MeEvoy v. American Pool Corp., 32 Cal.2d 295, 195 P.2d 783; Ferroggiaro v. Bowline, 153 Cal.App.2d 759, 315 P.2d 446, 64 A.L.R. 2d 1355; Dillword v. Riecks, 42 Cal.App. 602, 184 P. 35; Government Code secs. 26600-1, 41601-2.

It will be noted that plaintiff's amended complaint merely alleges that defendant Pierce 'did observe, accost and interrogate' Gfeller at some undisclosed place one-half hour before the accident. The pleading did not indicate that at that time he was driving a car, nor did it indicate what law, if any, he was at the time violating. The allegation is that the officer was 'informed and knew that said Vernon Gfeller intended to drive and operate an automobile upon the public highways' without reference to time or place, and that he than negligently failed to arrest and detain him and permitted him to 'remain at large' in his intoxicated condition.

Bearing on the question of the claimed duty of the police officer to arrest Gfeller and take him into custody at the time and place, it is alleged he observed, accosted and interrogated him. It is to be noted that the court, in the first instance, sustained a special and a general demurrer to the original complaint with leave to amend. No further amendment, in this respect, was made in the amended complaint and the trial court then sustained it without leave to amend, apparently believing that no further amendment could be made with respect to these particular allegations. Plaintiffs intimate in their closing brief, for the first time, that when uncertainties or ambiguities appear in the complaint, it should be open to correction by amendment. In the opening brief, plaintiffs concede that the question presented to the trial court was whether plaintiffs' complaint, as amended, stated a cause of action and also stated this was the ultimate question for this court to determine. We will therefore consider the allegations as therein set forth:

The elementary rule is set forth in Routh v. Quinn, 20 Cal.2d 488, 491, 127 P.2d 1, 3, 149 A.L.R. 215:

'* * * that an indispensable factor to liability founded upon negligence is the existence of a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member.'

In Stang v. City of Mill Valley, 38 Cal.2d 486, 240 P.2d 980, it was held that there was no liability imposed on a city, the city manager or fire chief for failure to provide sufficient water for effective fire control. It likewise held that the 'Failure of a governmental function involves the denial of a benefit owing to the community as a whole, but it does not constitute a wrong or injury to a member thereof so as to give rise to a right of individual redress, which right must be predicated on the violation of a duty of care owed to the injured party.' It is true that the pleading here under consideration does not necessarily involve the question of immunity but it does involve the question of an omission to perform a legal duty, and many cited authorities herein relied upon may be distinguished on this ground. As we construe the pleadings, plaintiffs' cause of action is founded upon the premise that when a police officer has knowledge that a member of society has formed the intention of committing a crime (i. e. knew that such person intended to drive and operate an automobile upon the public highways in an intoxicated condition at some future time), then for failure to make an arrest and detain such person, the officer becomes liable to all individuals for personal injury and property damage...