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



VILLANAZUL et al. v. STATE et al.

Civ. 17617, 17695, 17725.

Decided: November 02, 1950

Everett W. Leighton and Frank E. Carleton, Los Angeles, for appellants. Ray L. Chesebro, City Attorney, Bourke Jones, Assistant City Attorney, George William Adams and John F. Feldmeier, Alan G. Campbell, Deputies City Attorney, all of Los Angeles, for respondent City of Los Angeles. Fred N. Howser, Attorney General, Dan Kaufmann, Deputy Attorney General, for State of California.

Plaintiffs appeal from three judgments entered upon the sustaining of defendants' demurrers without leave to amend.

Facts: Plaintiffs filed actions against the defendants seeking to recover damages by reason of the negligent operation of an automobile by Muriel C. Gregg, a deputy marshal of the municipal court of the city of Los Angeles, while acting within the scope of his office and during the course of his employment as such deputy marshal.

The respective demurrers of the County of Los Angeles, City of Los Angeles and State of California were sustained without leave to amend.

The sole question for us to determine is:

Was defendant City of Los Angeles the employer of the deputy marshal at the time of the accident alleged in the complaint?

This question must be answered in the affirmative. In County of Los Angeles v. Industrial Accident Commission, 123 Cal.App 12, 17 et seq., 11 P.2d 434 (hearing denied by the Supreme Court), it was held that a deputy marshal of the municipal court of the city of Los Angeles was an employee of the city. In such case plaintiff, the beneficiary of a deputy marshal killed in the performance of his duty, was permitted to recover by the Industrial Accident Commission from the city of Los Angeles on the theory that decedent's death resulted from his employment and during the course of his employment by the city. This decision was cited and quoted with approval in Department of Natural Resources v. Industrial A. C., 216 Cal. 434, 14 P.2d 746. A similar conclusion was reached in Slavich v. Walsh, 82 Cal.App.2d 228, 236 et seq., 186 P.2d 35 (hearing denied by the Supreme Court).

In view of these decisions the trial court was correct in sustaining the demurrers of the County of Los Angeles and the State of California without leave to amend, but erred in sustaining the demurrer of the City of Los Angeles.

The argument of the attorneys for the City of Los Angeles though having much appeal and logic are simply with the decisions in the cited cases were erroneous. Even were we to concede this to be true, it is not within the power of the District Court of Appeal to overrule decisions of the Supreme Court of this state, nor of other District Courts of Appeal in cases where the Supreme Court has denied hearings.

For the foregoing reasons the judgments in favor of the County of Los Angeles and the State of California are affirmed, and the judgment in favor of the City of Los Angeles is reversed with directions to the trial court to permit such defendant to file an answer within ten days after the remittitur is filed in the county clerk's office of Los Angeles County.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.