LORAH v. BISCAILUZ

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

LORAH v. BISCAILUZ et al.

Civ. 10698.

Decided: February 24, 1936

Franklin B. MacCarthy, of Los Angeles, for appellant. Everett W. Mattoon, Co. Counsel, S. V. O. Prichard and J. F. Moroney, Deputies Co. Counsel, and James H. Sims, all of Los Angeles, for respondents.

Plaintiff, alleging physical injury and false imprisonment when she was arrested upon a felony charge, brought suit for damages against the arresting officer, who was a deputy sheriff of Los Angeles county, and against the sheriff of said county and the latter's official bondsmen. A general demurrer on behalf of the sheriff and his bondsmen was sustained without leave to amend, and from the resulting judgment plaintiff appeals.

While the general rule is that a sheriff is liable for the torts of his deputies committed in the performance of the latters' official acts or acts colore officii (Abbott v. Cooper, 218 Cal. 425, 23 P.(2d) 1027; Foley v. Martin, 142 Cal. 256, 71 P. 165, 75 P. 842, 100 Am.St.Rep. 123), upon the theory that the deputy, appointed by and answerable to the sheriff, is his representative, this rule has been held inapplicable in the case of a chief of police whose appointees are selected from a restricted list, who are under civil service regulations and who are in general governed by the provisions of a city charter. Michel v. Smith, 188 Cal. 199, 205 P. 113. It is difficult to find points of vital dissimilarity between the case of the chief of police and police officers working under a city charter in Michel v. Smith, supra, and the case of the sheriff and deputy sheriff under the county charter and civil service regulations in the instant case. There it is held, correctly we believe, that the head of the department of law enforcement is not responsible for the acts of his subordinates “unless he has directed such acts to be done, or has personally cooperated in the offense.” The same rule applied here would relieve the sheriff of liability in this case.

The sheriff not being liable personally, his sureties are likewise not answerable; not even in the case of defendant National Surety Company, whose bond by its express terms covers the acts of the sheriff's deputies. The right of third persons to sue on such bonds is granted by section 961 of the Political Code for “the wrongful act or default of such officer in his official capacity.” This right to sue on such a bond is derived from express statutory authority alone, and the section granting the right does not provide for suit for acts or defaults of deputies. Plaintiff, therefore, a stranger to the bond, may not maintain suit thereon. Sunter v. Fraser, 194 Cal. 337, 228 P. 660. Furthermore, inasmuch as the sheriff is not in this case liable as a matter of law for the torts of his deputies, a bond in which the surety has agreed to assume such liability must be held to have been executed as to such provision without consideration, and the provisions of the bond with relation thereto are mere surplusage.

Judgment affirmed.

GOULD, Justice pro tem.

I concur: CRAIL, P. J. I dissent: WOOD, J.

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