FERNELIUS ET AL v. PIERCE ET AL

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

FERNELIUS ET AL. v. PIERCE ET AL.*

Civ. 11805.

Decided: March 26, 1942

Heber James Brown, of Oakland, and Johnson & Harmon and Wm. H. Henderson, all of San Francisco, for appellants. F. Bert Fernhoff, City Atty., John W. Collier, Asst. City Atty., and Hagar, Crosby & Crosby, all of Oakland, and Thomas E. Davis, of San Francisco, for respondents.

Plaintiffs are the widow and minor children of Fred Fernelius, deceased. They brought this action seeking damages for the death of said deceased, alleging that said death resulted from an unlawful assault upon said deceased by two police officers while said deceased was confined in the city jail of the City of Oakland. The defendants Pierce and Hancock were the two police officers who were alleged to have made said unlawful assault. The defendants Hassler and Wallman were respectively the city manager and the chief of police of said City of Oakland. The defendant Fidelity and Deposit Company of Maryland was sued as the surety on the official bond of defendants Hassler and Wallman. Separate demurrers were interposed by the several defendants. The demurrers of defendants Pierce and Hancock were overruled. The demurrers of defendants Hassler, Wallman and Fidelity and Deposit Company of Maryland were sustained without leave to amend. Plaintiffs appeal from the judgment thereafter entered against plaintiffs and in favor of the last mentioned defendants.

The main question raised on this appeal is that presented by plaintiffs' contention that the complaint stated a cause of action against defendants Hassler and Wallman and that the trial court therefore erred in sustaining the demurrers of said defendants without leave to amend. Said defendants seek to defend the ruling of the trial court on their demurrers solely upon the ground that no cause of action was stated against them.

All parties are agreed that the doctrine commonly known as respondeat superior is not applicable to public officers and that a superior officer is not ordinarily responsible to third parties for the acts of his subordinates unless he had directed said acts to be done or has personally cooperated therein. Michel v. Smith, 188 Cal. 199, 205 P. 113; Hilton v. Oliver, 204 Cal. 535, 269 P. 425, 61 A.L.R. 297; Whiteman v. Anderson–Cottonwood Irr. Dist., 60 Cal.App. 234, 212 P. 706; Baisley v. Henry, 55 Cal.App 760, 204 P. 399; 21 Cal.Jur. 405. Plaintiffs argue, however, that a superior officer is responsible to third parties for his own negligence consisting of either the negligent appointment or the negligent retention of incompetent subordinates. The complaint of plaintiffs against defendants Hassler and Wallman was drawn solely upon the theory of the negligent retention of incompetent subordinates, and for the purpose of this appeal we must assume that all allegations thereof are true.

It is unnecessary to set forth in detail all of the allegations of the complaint as said defendants do not question the sufficiency of the specific allegations to support plaintiffs' theory. Said defendants question only the soundness of the theory itself.

The complaint alleged the unlawful assault upon the deceased by said police officers resulting in skull fractures and concussion of the brain leading to the death of the deceased. It further alleged the existence of the power in defendants Hassler and Wallman to appoint and remove said police officers. It further alleged: “That defendants August Pierce and Glen Hancock were unfit and incompetent to perform their duties as police officers of the City of Oakland, as follows, to wit: that said August Pierce and Glen Hancock were vicious, high tempered, and addicted to the use of unnecessary force and violence and likely to unlawfully assault, beat, wound, ill–treat and use unnecessary force and violence against any person in their charge as police officers of the said City of Oakland. That defendants Bodie Wallman and John F. Hassler prior to May 4, 1940, knew, or should have known in the exercise of due care, of the aforesaid incompetence and unfitness of defendant August Pierce and defendant Glen Hancock to perform their duties as police officers of the City of Oakland; (Here follow allegation of numerous previous alleged unlawful assaults by the defendant police officers and allegations on information and belief of reports made to defendants Hassler and Wallman concerning said unlawful assaults) * * * That in spite of the fact that said defendants Bodie Wallman and John F. Hassler knew or should have known prior to May 4, 1940, that the defendants August Pierce and Glen Hancock were unfit and incompetent as aforesaid, they wholly failed and neglected to suspend, discipline or discharge said August Pierce and Glen Hancock, they having the power and the duty so to do as set out in paragraphs V and VI hereof, and thereby failed and neglected to well, truly, honestly and faithfully perform the duties of their respective offices.”

Though there is much argument in the briefs for a distinction in the rule of liability between the negligent appointment and the negligent retention of an incompetent subordinate, the real point at issue is the status of the subordinate as it relates to the supervision and control of the superior. The principle upon which liability rests in cases of this character is stated in Union Bank & Trust Co. v. Los Angeles County, 11 Cal.2d 675, 679, 81 P.2d 919, 921: “It may be conceded that in the absence of statute the modern view is opposed to making public officers civilly liable for torts of deputies, where the latter are themselves statutory officers and not under the superior's unrestricted control or right of hiring and discharging. See Michel v. Smith, 188 Cal. 199, 205 P. 113 (municipal police officer); Van Vorce v. Thomas, 18 Cal.App.2d 723, 64 P.2d 772 (deputy marshal of municipal court); Pavish v. Meyers, 129 Wash. 605, 225 P. 633, 34 A.L.R. 561 (police officer); note, 43 Harv.L.Rev. 327. The other view is usually grounded upon the identity of the officer and his deputy or the unrestricted right of control. See Foley v. Martin, 142 Cal. 256, 71 P. 165, 75 P. 842, 100 Am.St.Rep. 123; Duluth v. Ross, 140 Minn. 161, 167 N.W. 485; New York v. Fox, 232 N.Y. 167, 133 N.E. 434. In the instant case the clerk's deputies are independent statutory officers within the rule of such cases as Michel v. Smith, supra, and Van Vorce v. Thomas, supra.” Emphasis ours.

The determining point here is the question of “unrestricted control.” The statements found in 43 Cor.Jur. p. 717 and 21 Cal.Jur. p. 405 are but partial statements of the rule. To say that a public officer is not responsible unless he has directed or cooperated in the tortious acts of the subordinate, or unless he has failed to use ordinary care in the appointment does not conform to the modern decisions. Conceding that a public officer might be liable if he knowingly and willingly retained in the service one who is incompetent to perform his duties, such liability does not rest solely upon the statement that he has not discharged the subordinate from his public employment. The leading case on the subject is Michel v. Smith, 188 Cal. 199, 205 P. 113. That was an action against the chief of police, a sergeant, and two subordinate police officers for an unlawful arrest and imprisonment. There the court noted the distinction between the status of a sheriff and his deputy, and a chief of police and subordinates who were also public servants whose appointment and removal were governed by civil service restrictions. After consideration of the old rule relating to a sheriff and his deputy the court said (188 Cal. at page 202, 205 P. at page 114): “A different rule prevails in the case of the chief of a municipal police department. He may even be charged with the duty of selecting the members of the force, but he is not responsible for their acts, unless he has directed such acts to be done, or has personally co–operated in the offense, for each policeman is, like himself, a public servant. Casey v. Scott, 82 Ark. 362, 101 S.W. 1152, 118 Am.St.Rep. 80, 12 Ann.Cas. 184.” The court then clearly stated that, because of the civil service provisions of the charter, the chief of police “may not be held liable in damages for the unlawful acts and omissions of the subordinates of the department, selected pursuant to the provisions of the charter, unless it can be shown that he has directed such acts or personally co–operated therein.”

This ruling was followed in Lorah v. Biscailuz, 12 Cal.App.2d 100, 54 P.2d 1125, where the court denied the liability of the sheriff for a tortious act of his deputy who was appointed and made subject to removal under civil service provisions of the Los Angeles County charter. Michel v. Smith, supra, was followed in Bower v. Davis, 13 Cal.App.2d 678, 57 P.2d 574, which was a suit against the chief of police for an alleged assault and conversion by a turnkey in the city police station. It was followed in Van Vorce v. Thomas, 18 Cal.App.2d 723, 64 P.2d 772, which was a suit against the marshal for an alleged assault by a deputy. In rejecting the early rule that the sheriff and his deputy are one, and that the superior is always liable for the acts of his subordinate, the court emphasized the change in “principle” brought about by the civil service restrictions upon the power of selection and removal. We quote (18 Cal.App.2d at page 725, 64 P.2d at page 773): “Eventually, however, the gradual changes continue until there appears an office in which the chief is only one of many holding salaried positions created by law, and his right to employ and terminate employment is no longer unrestricted. Under such circumstances, to make the head of the office respond in damages for the negligent discharge of duties, which he has no choice but to delegate to others, becomes ‘manifestly unjust.’ So Michel v. Smith, 1922, 188 Cal. 199, 205 P. 113, and again Bower v. Davis, 1936, 13 Cal.App.2d 678, 57 P.2d 574, find in the changed situation, particularly the restrictions placed upon the right to employ and sever the employment of assistants, a reason for differentiating the liability of the Los Angeles chief of police from that of the sheriff. So, also Lorah v. Biscailuz, 1936, 12 Cal.App.2d 100, 54 P.2d 1125, declines to follow the formula of ‘personal representative’ in the case of the Los Angeles county sheriff, whose deputies are to be appointed and discharged under the regulations of civil service.”

The Michel case was followed with approval in Hilton v. Oliver, 204 Cal. 535, 539, 269 P. 425, 426, 61 A.L.R. 297, where the court said: “The rule laid down or approved by the decisions in this state is that an agent is not in general liable to third persons for the misfeasance or malfeasance of a subagent employed by him in the service of his principal, unless he is guilty of negligence in the appointment of such subagent, or directs or authorizes the particular wrongful act of the subagent, or improperly co–operates in the latter's acts or omissions. Dobbins v. City of Arcadia, 44 Cal.App. 181, 186 P. 190; Baisley v. Henry, 55 Cal.App. 760, 204 P. 399. The defendant trustees can be held liable under the facts shown herein only by reason of the application of the doctrine of respondeat superior. This doctrine has no application as between a public officer and his subordinates, who are likewise in the public service, unless the public officer has directed or countenanced the tortious acts to be done, or has co–operated therein. Michel v. Smith, 188 Cal. 199, 205 P. 113; Whiteman v. [Anderson–Cottonwood] Irrigation District, 60 Cal.App. 234, 212 P. 706.”

Reed v. Molony, 38 Cal.App.2d 405, 410, 101 P.2d 175, an action against the State Board of Medical Examiners for a tort of a special police officer employed by the board, followed the same rule, and in O'Brien v. Olson, 42 Cal.App.2d 449, 463, 109 P.2d 8, the court, after approving the rule of Michel v. Smith, supra, quoted with approval the language in Hilton v. Oliver, supra, which we have quoted above relating to the doctrine of respondeat superior.

The true analysis of all these decisions is that, though none states the rule with all its exceptions, they concur in the approval of the principle that a public officer is not responsible for the tortious act of a subordinate who is not in his private service, but is himself a servant of the same governmental agency, unless such officer has directed or cooperated in the acts done, or unless, having unlimited power of appointment and removal, the officer has failed to use ordinary care in the selection or in the retention of the subordinate. The reason for these limitations upon the liability of a public officer is that, since the liability must be founded upon his negligence, it is unfair and unjust to hold one responsible for the negligence of another which he had no power, in the exercise of all reasonable ordinary care, to prevent.

The application of these principles to the city manager and chief of police seems clear. The Oakland charter provides: “The City Manager * * * subject to the civil service provisions of this Charter * * * shall have the power to appoint, discipline and remove * * * all subordinate officers and employees of the City responsible to him.” Article VII, section 27, subdivision 2, Stats.1931, p. 2653. “The City Manager, among other limitations, shall have no power under this Charter * * * f. To dismiss, suspend or discharge any officer or employee in the classified civil service, except in accordance with the civil service provisions of this Charter.” Article VII, section 27, subdivision 5, Stats.1931, p. 2655. The chief of police does not possess the same authority. He is appointed by the manager, subject to the civil service provisions of the charter but like all other “chief officials,” has the power to suspend any subordinate temporarily for incompetency or dereliction of duty. Section 81 of the charter (Stats.1931, p. 2665) provides for the suspension, fine, and removal of all persons in the classified civil service on order of the city manager, or on his approval of the suspension made by a “chief official,” but in all such cases the person affected may appeal to the civil service board which “shall fully hear and determine the matter.” The finding and decision of the civil service board shall “forthwith be enforced and followed” by the board or official from which the proceedings were initiated. Section 82, Stats.1931, p. 2665.

We can find no essential difference between these provisions of the Oakland charter, and those of the Los Angeles charter which were before the court in Michel v. Smith, supra. And there is no essential difference in the status of the city manager here and that of the chief of police involved in that case. For these reasons we are satisfied that the questions here involved are determined by the conclusion reached in the Michel case, where the court said (188 Cal. at page 203, 205 P. at page 115): “Aside from the limitations thus placed upon the chief in the selection of his subordinates, his control over the members of the force after appointment is also subject to the limitation that while he may remove members of the force for cause, such removal is subject to review by the police commission. These provisions of the charter plainly determine the status of the chief in the police department. He is a member of the department and a public servant like every other member, but by reason of his position is charged with the supervision and control of the police force of the city. Charter, § 53. In this capacity he may not be held liable in damages for the unlawful acts and omissions of the subordinates of the department, selected pursuant to the provisions of the charter, unless it can be shown that he has directed such acts or personally co–operated therein.” We have found no authority in the state taking an opposite view, and no authority disputing the brief statement in Union Bank & Trust Co. v. Los Angeles County, supra, that the superior officer is not liable for the torts of subordinates or deputies “where the latter are themselves statutory officers and not under the superior's unrestricted control or right of hiring and discharging.”

From our conclusion that the complaint does not state a cause of action against either the city manager or the chief of police it would follow that no cause is stated against the bonding company since the bond was given as surety that these officers would perform the duties imposed upon them by law. The complaint pleads that the bond was given to the City of Oakland to cover a specified number of officers and employees of the city named in a schedule attached, and that in said schedule appear the names of Hassler and Wallman. (The names of Pierce and Hancock do not appear upon this schedule.) The bond attached as an exhibit to the complaint recites that it shall cover losses occasioned by “any officer and/or employee listed in the schedule.” Since defendants Pierce and Hancock were not listed in this schedule the appellant seeks to hold the bonding company under the theory that they were acting as deputies of Hassler and Wallman. They rely upon section 959 of the Political Code and Union Bank & Trust Co. v. Los Angeles County, supra.

The code section declares that the official bond executed by any public officer shall apply to breaches committed by “his deputy, or clerk.” In the case cited the supreme court held the surety company liable under this section for a default by a deputy of the county clerk. But, under the Oakland charter, there is no such relation of principal and agent, or deputy, between the city manager, the chief of police, and subordinate police officers. Section 87 of the Charter (Stats.1911, Part Two, p. 1606) provides:

“The police department shall consist of a chief of police, captain of inspectors who shall act as chief of police in the absence of the chief of police, and such captains of police, lieutenants, inspectors, assistant inspectors, sergeants, corporals and bailiffs as in the judgment of the council the needs of the service may require * * *.

“Patrolmen shall be appointed in such numbers as not to exceed one patrolman for every eight hundred inhabitants of the city.”

Certainly a police officer, or a patrolman, is not a deputy city manager, or a deputy chief of police, or a clerk of either. He is a special officer of the municipality responsible as such to the municipal corporation and subject only to such supervision and control as the charter may provide.

The judgment is affirmed.

NOURSE, Presiding Justice.

STURTEVANT, and SPENCE, JJ., concurred.