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District Court of Appeal, First District, Division 1, California.


Civ. 10522

Decided: July 29, 1938

Alfred J. Hennessy, of San Francisco, for appellant. Anthony Brazil, Dist. Atty., of Salinas, for respondent.

This is an appeal from a judgment entered in defendant's favor pursuant to an order sustaining a demurrer to an amended complaint without leave to amend.

The action was instituted by plaintiff as assignee, the purpose thereof being to obtain a money judgment against Monterey county in the sum of $7,765.45 under the authority of part 4, title 4 of the Political Code, entitled “Liabilities of Counties and Cities for Injuries to Property by Mobs or Riots “, which declares in part that “Every county and municipal corporation is responsible for injury to real or personal property situate within its corporate limits, done or caused by mobs or riots”. Pol.Code, sec. 4452.

Plaintiff made no claim that any of his property had been injured or destroyed, but in a single count he sued as assignee of fifty-four other persons whose wearing apparel and personal belongings he alleged were destroyed by the actions of a mob. The complaint in this regard sets forth, in separate paragraphs, the name of each person, a list of his property alleged to have been destroyed, and its asserted value. For example, the paragraph relating to the first of such persons reads: “J.F. Sampilo, personal property owned by him and in his possession, consisting of a saxaphone, overcoat, wrist watch, blankets and wearing apparel, of the total value of $265.75.” Continuing, the complaint alleged that prior to the commencement of the action each of said persons filed a verified claim for damages against the county, but that the same was rejected by the board of supervisors and thereafter each claimant in writing assigned and delivered “his said aforementioned claim” to plaintiff.

The trial court's ruling sustaining the demurrer without leave to amend is founded on two legal propositions, first, that the liability imposed upon counties and municipalities by said section 4452 is in the nature of a statutory penalty (Underhill v. Manchester, 45 N.H. 214; 13 A.L.R. 754; Champaign County Com'rs v. Church, 62 Ohio St. 318, 57 N.E. 50, 48 L.R.A. 738, 78 Am.St.Rep. 718; County of Allegheny v. Gibson's Son & Co., 90 Pa. 397, 35 Am.Rep. 670; Marshall v. City of Buffalo, 50 App.Div. 149, 64 N.Y.S. 411; Feinstein v. City of New York, 157 Misc. 157, 283 N.Y.S. 335); and secondly, that the right to recover a statutory penalty is not assignable (Peterson v. Ball, 211 Cal. 461, 296 P. 291, 74 A.L.R. 187; Western Mortgage, etc., Co. v. Gray, 215 Cal. 191, 8 P.2d 1016, 80 A.L.R. 866).

Appellant concedes the correctness of both of the above propositions, but contends that while the statutory liability so imposed upon counties and municipalities is as to them in the nature of a penalty, the right of recovery arising out of the statute in favor of an injured property owner, being limited to recovery of the actual loss or damage sustained, is a remedial right, as distinguished from a right to recover a penalty, and if so, that such right is assignable; and he asserts that the decisions rendered in Peterson v. Ball, supra, and Western Mortgage, etc., Co. v. Gray, supra, tend by implication to support his theory. We are unable to sustain the theory thus advanced by appellant, nor do we find anything in the decision in either of the cases mentioned lending support thereto. Quite to the contrary, it appears to have been definitely settled by both of those cases that where the liability imposed by the statute is punitive in character so far as a defendant is concerned (in this case the county), the right of recovery based thereon is not assignable, even though so far as the plaintiff is concerned such right be deemed remedial. Those cases were founded on former section 309 of the Civil Code, which imposed a statutory liability on the directors of corporations for the violation of certain corporate restrictions, and provided a dual remedy for recovery against the directors, one remedy being in favor of the corporation and the other in favor of creditors. And in both cases it was held that the liability thus imposed on the directors was “highly punitive” in character, and that therefore the right of recovery afforded by the statute was not assignable, either by the corporation or the creditors.

Nor does the fact that a statute of the kind here involved allows compensatory damages rather than a fixed amount render the liability imposed thereby any the less punitive in character. As said in Champaign County Com'rs v. Church, supra (page 52), “The primary purpose of the legislature was punishment and correction. The expressed object of the law is ‘the suppression of mob violence.’ * It makes no difference whether in the statute it be called penalty, or compensation, or damages. Nor does it alter the case that the amount is fixed—that is, determined—by the statute, as in this case, or that it is to be found by a jury. Nor yet does it matter that it is declared to be ‘for the suppression of mob violence,’ as in this case, or ‘for compensating parties whose property may be destroyed in consequence of mobs or riots,’ as in the statute which was upheld in Darlington v. Mayor, etc., 31 N.Y. [164] 187 [88 Am.Dec. 248]; because the imposition of any amount by authority of the state is, in either case, essentially penal and corrective in its nature.” In other words, whatever the injured property owner is allowed to recover under the statute from the public treasury is strictly in the nature of a penalty, regardless of the measure of the recovery; and such being the case, the right to sue therefor is not assignable. One of the principal reasons given by some of the courts for the rule precluding the assignment of the right to sue for a penalty is that it is a personal right; that assignability of such claims encourages litigation and strife, and that “public policy forbids the conversion of penalties into commodities or assets.” Wilson v. Shrader, 73 W.Va. 105, 79 S.E. 1083, 1086, Ann.Cas.1916D, 886, quoted in Peterson v. Ball, supra.

Appellant has also cited several cases from other jurisdictions which uphold the assignability of certain claims, but those cases are not in point for the reason that as pointed out therein the liabilities sued upon were not punitive in character. As stated in Western Mortgage, etc., Co. v. Gray, supra, in many jurisdictions having statutes similar to our former section 309, it has been held that the assignment of the debt against the corporation carried with it the right to sue the directors on their liability imposed by the statute; but as the court goes on to state, the basis of those decisions is that the liability sued upon is contractual in character. Credit Men's Adjustment Co. v. Vickery, 62 Colo. 214, 161 P. 297, which appellant emphasizes in his opening brief, appears to have been such a case, it being there said, in speaking of the liability imposed by the statute on corporate directors, that “in the strict sense” such liability was not punitive in character. Here, however, admittedly, the liability imposed upon the bodies politic by the provisions of the Political Code is not based on contract, tort, negligence, misfeasance or malfeasance, but is purely punitive in character. It is our conclusion, therefore, that as held by the trial court, the right of recovery based thereon is not assignable.

The judgment is affirmed.

KNIGHT, Justice.

We concur: TYLER, P.J.; CASHIN, J.

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