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


Civ. 15148.

Decided: April 07, 1953

Allan L. Sapiro, Elinor R. Carson and McNeil, Markley & Sapiro, San Francisco, for appellant. Raymond D. Williamson, San Francisco, for respondents.

This action for $11,650 compensatory and $10,000 punitive damages for false imprisonment was brought by plaintiff against the late sheriff Murphy and his surety. The trial court sustained demurrers of both defendants to the amended complaint without leave to amend. Plaintiff appeals. After the appeal was filed Sheriff Murphy died, and his executor has been duly substituted. The two basic questions presented are whether the amended complaint does state a cause of action, and, if so, whether an action for false imprisonment survives the death of the tort-feasor.

The amended complaint states a cause of action. After setting forth the jurisdictional facts, it alleges that on April 10, 1950, in a certain divorce action then pending, plaintiff in the instant case was adjudged guilty of contempt for failure to pay attorney's fees and certain sums for the support of his wife. The order of commitment pursuant to which the sheriff took plaintiff into custody is set forth in full in the amended complaint. The last portion of that order reads as follows: ‘Now, therefore, it is hereby ordered, adjudged and decreed that * * * John A. Vallindras, is in contempt of this Court, and the Sheriff * * * is hereby ordered to take said defendant into custody * * * to be imprisoned in the County Jail * * * until the sum of ________ shall have been paid, or until he be otherwise discharged according to law, and until further order of this Court in the premises.’

The amended complaint then alleges that this order ‘was illegal and void upon its face’ in that it failed to specify the act by which plaintiff could secure his release from custody, that is, the amount that had to be paid by plaintiff to obtain his release from jail was left blank. The same blanks appear in two other portions of the order. It is then alleged that ‘without jurisdiction and pursuant to said void order’ the sheriff took plaintiff into custody where he remained for seventy-five days until released by virtue of the order of the Supreme Court in a habeas corpus proceeding—In re Vallindras, 35 Cal.2d 594, 220 P.2d 1.

By way of damages plaintiff alleged a loss of $550 in costs and counsel fees expended in the habeas corpus proceedings; that he lost earnings of $50 per week while in jail, and because of his incarceration was discharged from his job when he was released and could not secure new employment until September 5, 1950 (he had been discharged from jail on June 30, 1950); and as a result suffered $1,100 in loss of earnings. It is then alleged that because of the unlawful arrest ‘plaintiff suffered and sustained great physical inconvenience and discomfort, nervous upset, loss of time, mental anguish, loss of health, humiliation of mind, shame, public ridicule, invidious publicity, and public disgrace, to his great loss and damage’ in the sum of $10,000. Exemplary damages of $10,000 are also prayed for.

The trial court filed a memorandum opinion and sustained demurrers of both defendants without leave to amend, and judgment was thereupon entered in favor of defendants.

The demurrers were general and special. On this appeal respondents call attention to some uncertainties in the complaint and to some conclusions that are alleged, and seek to sustain the judgment on these grounds. On this appeal we are interested only in whether the complaint states the essentials of a cause of action for false imprisonment. If so, even though the pleading may be subject to criticism, if the errors can be corrected it was error to sustain the demurrers without leave to amend. Speegle v. Board of Fire Underwriters, 29 Cal.2d 34, 172 P.2d 867.

The theory of the complaint is that the sheriff, through a deputy, took plaintiff into custody under a void and illegal commitment. There can be no doubt that the sheriff and his surety are liable civilly for the torts of the deputy. Abbott v. Cooper, 218 Cal. 425, 23 P.2d 1027. While the surety may not be liable for punitive damages, such allegations do not impair the statement of the cause of action for actual damages.

The problem presented is whether the order of commitment here involved was, as a matter of law, void on its face or whether it was ‘regular’ on its ‘face’ within the meaning of section 4168 of the Political Code as it read in April of 1950. That section in 1951 was transferred unchanged to the Code of Civil Procedure as section 262.1 Stats. of 1951, Chap. 655, at p. 1847. If the commitment was regular on its face the trial court properly sustained the demurrers; if void on its face, it did not. That section then provided and now provides: ‘A sheriff or other ministerial officer is justified in the execution of, and shall execute, all process and orders regular on their face and issued by competent authority, whatever may be the defect in the proceedings upon which they were issued.’ See, also, § 43.5(a) of the Civil Code.

These sections do not protect the sheriff in the present proceeding for the reason that the case of In re Vallindras, 35 Cal.2d 594, 220 P.2d 1, necessarily held that this very commitment was void on its face. The commitment was challenged in that case by a petition for a writ of habeas corpus. Habeas corpus is normally a ‘jurisdictional’ writ (see discussion 13 Cal.Jur. p. 223, § 7) and is used only to inquire into ‘the question of jurisdiction and the validity of the process upon its face.’ (13 Cal.Jur. at p. 218, § 4.) The Supreme Court necessarily found in the Vallindras case that this very commitment was void and not regular on its face. Otherwise, it would not have issued the writ of habeas corpus. In its opinion the Supreme Court quoted the order of commitment and then bluntly held that this order ‘does not meet the law's requirements' in that it ‘fixes no amount which Vallindras must pay to purge him from contempt and secure his release.’ 35 Cal.2d at page 596, 220 P.2d at page 2. The Court, on the same page, then pointed out that ‘Section 1219 of the Code of Civil Procedure provides that when a person is to be imprisoned until such time as he shall perform a certain act, ‘* * * the act must be specified in the warrant of commitment.’ As in the case of In re Wells, 29 Cal.2d 200, 173 P.2d 811, the order upon which Vallindras is held by the sheriff does not meet this statutory mandate.'

The case of In re Wells, relied upon in the Vallindras case, in no uncertain manner held that a commitment of the type here involved was absolutely void upon its face. As one of the grounds of its opinion the Supreme Court stated, 29 Cal.2d at page 202, 173 P.2d at page 812: ‘Upon another ground the judgment of contempt here is void in its entirety. It purports to confine the petitioner ‘until he purges himself of said contempt,’ but it does not comply with section 1219 of the Code of Civil Procedure, which section governs commitments of that nature. That section provides, ‘When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he has performed it, and in that case the act must be specified in the warrant of commitment.’ Here the judgment (which constitutes the ‘warrant of commitment’) does not specify the act or acts by which petitioner is to purge himself of contempt. The questions which he must answer are not recited. He is ‘remanded to the Sheriff * * * until he obeys said order of this Court.’ It is not stated that petitioner must restore any funds to any bank account. If it was intended to prescribe such a condition the commitment would have to so specify. Furthermore, the judgment must not only specify the act to be performed; it must also include a finding that such act is within the power of the contemner to perform. Otherwise it is void.' See, also, In re Moulton, 100 Cal.App.2d 559, 224 P.2d 76; In re Scroggin, 103 Cal.App.2d 281, 229 P.2d 489.

The trial court, in its memorandum opinion, held that the commitment order here involved was not void on its face but was simply voidable, being the result of an inadvertent omission, and further, that the Superior Court had ‘jurisdiction’ but simply committed ‘error’ in the exercise of that ‘jurisdiction.’ The court had some difficulty in squaring these conclusions with the holding in the Wells case, above quoted, to the effect that such orders are ‘void,’ and finally concluded that the Supreme Court used this term inadvertently and incorrectly. We cannot agree with these conclusions of the trial court. We see no escape from the conclusion that the cases of In re Vallindras and In re Wells, necessarily stand for the propositions that the Superior Court has no jurisdiction to issue such orders of commitment, and that such orders are void and not merely voidable.

There can be no serious doubt that process that is void does not protect a ministerial officer. Reilly v. United States Fidelity & Guaranty Co., 9 Cir., 15 F.2d 314; Sparks v. Buckner, 14 Cal.App.2d 213, 57 P.2d 1395. As was said in Brichman v. Ross, 67 Cal. 601 at page 603, 8 P. 316, at page 317: ‘Ministerial officers are presumed to know the law, and are bound at their peril to know the general jurisdiction of the courts whose process they are called upon the enforce; and if they execute process which the court has no jurisdiction to issue, they are liable.’

For these reasons it must be held that the complaint states a cause of action against the sheriff and his surety for false imprisonment.

This leaves for consideration the question of the survivability of this action against the sheriff and his surety. As already pointed out, after the appeal was perfected, Sheriff Murphy died. His executor has been substituted. The question presented is whether a cause of action for false imprisonment survives the death of the alleged tort-feasor.

At common law, tort actions died with the person by whom or to whom the wrong was done. (See 1 Cal.Jur.2d p. 93, § 63.) Only those tort actions survive where some statute so provides. Prior to the statutes about to be mentioned it was held that a false imprisonment action did not survive the death of the tort-feasor. Harker v. Clark, 57 Cal. 245; Vragnizan v. Savings Union etc. Co., 31 Cal.App. 709, 161 P. 507.

From an early date California has adopted various statutes to provide for the survivability of some tort actions. One group of these statutes provided that, in spite of the death of either party, tort actions, subject to certain conditions, involving injury to real or personal property survived. Civ.Code, § 954; Probate Code, §§ 573, 574; see 1 Cal.Jur.2d p. 98, § 70. Until 1946, however, it was generally thought that tort actions involving injuries to the person did not survive. In that year the case of Hunt v. Authier, 28 Cal.2d 288, 169 P.2d 913, 177 A.L.R. 1379, was decided. The majority of the court held that the heirs of one decedent could maintain an action against the personal representative of another decedent in a case where the defendant's decedent had shot and killed the plaintiff's decedent and then committed suicide. The conclusion that the cause of action survived was reached by what was called a ‘liberal’ interpretation of that portion of section 574 of the Probate Code as amended in 1931 which allows an action against the personal representative of a decedent who had ‘wasted, destroyed, taken, or carried away, or converted to his own use, the property of any such person’. The court interpreted the word ‘property’ in this section in its broadest sense, and as altering the common law rule of non-survivability, and reasoned that the loss to the plaintiff of the right of future support from his decedent amounted to a taking away of the ‘property’ of such person, because by such action the estate of the plaintiff's decedent had been diminished. Thus Probate Code, section 574, was interpreted to be a statute providing for the survivability of all tort actions involving injury to property as that term was interpreted in the opinion. In Moffat v. Smith, 33 Cal.2d 905, 206 P.2d 353, Probate Code section 574 was applied in this manner in favor of a living plaintiff injured in an automobile accident so as to permit him to recover from the representative of the deceased tort-feasor for the loss of potential future earnings caused by the accident. The rule of the Hunt case has been applied to various factual situations. See Mecum v. Ott, 92 Cal.App.2d 735, 207 P.2d 831; Nash v. Wright, 82 Cal.App.2d 475, 186 P.2d 691; Smith v. Minnesota Mut. Life Ins. Co., 86 Cal.App.2d 581, 195 P.2d 457; City of Los Angeles v. Howard, 80 Cal.App.2d 728, 182 P.2d 278; Smith v. Stuthman, 79 Cal.App.2d 708, 181 P.2d 123.

In 1949 the Legislature provided for survivability by legislation. This was accomplished by the addition of section 956 to the Civil Code, the amendment of sections 376 and 377 of the Code of Civil Procedure and the amendment of sections 573 and 574 of the Probate Code. (See 37 Cal.L.Rev. 644, at p. 657.) For present purposes we are interested only in the amendment to section 574 of the Probate Code and the addition of section 956 to the Civil Code. The amendment to section 574 of the Probate Code consisted of adding to the section, the provisions of which otherwise remained unchanged, the following sentence: ‘This section shall not apply to an action founded upon a wrong resulting in physical injury or death to any person.’ Section 956, the new section added to the Civil Code, so far as pertinent here, provides: ‘A thing in action arising out of a wrong which results in physical injury to the person or out of a statute imposing liability for such injury shall not abate by reason of the death of the wrongdoer or any other person liable for damages for such injury * * *.’

The question presented is whether the cause of action for false imprisonment involving the type of damages here alleged under these sections survives the death of the tort-feasor. Those damages, among others, included loss of earnings both before and after the time of incarceration, physical inconvenience and discomfort, nervous upset, mental anguish, loss of health, humiliation, shame, public ridicule, invidious publicity and public disgrace. The respondents argue that section 956 of the Civil Code limits survivability to physical injury and death cases and by implication denies it to such torts as false imprisonment, malicious prosecution, libel, slander, and violation of the right of privacy. In support of this interpretation respondents rely on certain statements in an article by Lawrence Livingston in 37 California Law Review, p. 63. The author was a member of a committee of the State Bar that proposed and drafted the legislation in question. The author argues (p. 72) that only actions involving physical injury and death should survive, and that torts of the type here involved should not survive. Undoubtedly the author of the article believed that the legislation proposed would accomplish these results. Others have not so interpreted the legislation. In a student comment on the legislation written after its passage, appearing in 37 Cal.L.Rev. at p. 657, it is stated (p. 659):

‘* * * the Hunt case implied that Probate Code section 574, as it then existed, was a general survival statute, and that any tort action, involving injury to the estate, would survive the death of either the injured party or the tort-feasor. Later decisions support this position [citing some of the cases cited supra] * * *

‘Although the amendment has limited Probate Code section 574 so that it does not apply to torts involving physical injury or death, the section says nothing of other torts. Since in the Hunt case, and those following it, the courts seem inclined to accept the broadest possible interpretation of ‘property,’ it is possible to argue that torts involving physical injury and death survive under Civil Code section 956 and Code of Civil Procedure sections 376 and 377, and that other torts, e. g. false imprisonment, malicious prosecution, libel and slander, survive under Probate Code section 574 and Hunt v. Authier.'

The same general thought was expressed by Thomas E. Stanton, Jr. in commenting on the legislation in the November–December, 1949, issue of the State Bar Journal at p. 424.

We think the conclusion is inevitable that, if we start with the premise that Hunt v. Authier properly interpreted section 574 of the Probate Code (and this court is bound by that decision), then all that the 1949 legislation accomplished was to provide expressly for the survivability of causes of action for physical injuries and wrongful death, but that as to other torts, such as false imprisonment that involve damage to property as that term was interpreted in Hunt v. Authier, they survive under section 574. This may not have been the intent of the lawyer committee that proposed the legislation, but it is what the legislation that was adopted actually accomplished.

The only logical explanation of Hunt v. Authier is that it interpreted section 574 of the Probate Code to be a general tort survival statute as to those torts involving injury to the estate or property of the plaintiff. If section 574 so provided before 1949, obviously the identical language in the section which the Supreme Court found sustained that interpretation, and which remained unchanged by the 1949 amendments, means the same thing after 1949, except that it does not apply to causes of action resulting in personal injury or death which are now covered by other sections of the law.

This interpretation is suggested, if not compelled, by the reasoning of Cort v. Steen, 36 Cal.2d 437, 224 P.2d 723. There the automobile accident in which plaintiff was injured occurred in 1947. Thereafter the driver of the car died. In January, 1948, plaintiff commenced his action against the driver's administrator, alleging injury to his person and property. The trial court sustained a demurrer to both counts on the ground that the action did not survive. In 1949 the survivability amendments were adopted. The Supreme Court in 1950 affirmed as to injuries to the person but reversed as to the count involving injury to the property or estate of plaintiff. The court first held that survivability was a matter of substance, and that since the statute providing for survivability of personal injury actions was not passed until 1949, the statute was not retroactive and that count did not survive. But as to the count relating to injury to the property or estate of the injured party, even though section 574 of the Probate Code had been amended in 1949 as above indicated, that cause of action survived under the theory of Hunt v. Authier. In other words, by excluding wrongs resulting in physical injury or death from section 574 of the Probate Code, injuries to ‘property’ as that term was defined in the Hunt case still survived. The court pointed out that Hunt v. Authier, 28 Cal.2d 288, 169 P.2d 913, 177 A.L.R. 1379, and Moffat v. Smith, 33 Cal.2d 905, 206 P.2d 353, had held that torts resulting in injury to property survived under section 574 of the Probate Code and then concluded, 36 Cal.2d at page 440, 224 P.2d at page 724: ‘The 1949 act did not constitute a repeal of the survival provision as it related to such recovery.’ See Hume v. Lacey, 112 Cal.App.2d 147, 245 P.2d 672; note, 25 So.Cal.L.Rev. 112.

Under these cases and the 1949 amendments it must be held that section 956 of the Civil Code provides for the survivability of actions for physical injuries. But that section is not all inclusive. Section 574 of the Probate Code is a general statute providing for the surviving of all torts, except those provided for in section 956 of the Civil Code, which result in injury to property as defined in Hunt v. Authier.

Now how do these rules apply to the instant case? The complaint alleges loss of $550 in costs and counsel fees, a loss of $50 a week wages while in jail, and a loss of earnings of $1,100 after plaintiff was released. Those certainly constitute injury to property within the meaning of section 574 of the Probate Code as interpreted in Hunt v. Authier. The cause of action for such damage survives. The plaintiff also alleges various items of damage amounting to physical injuries—loss of health, mental suffering, etc. The cause of action for such damage survives under the express terms of section 956 of the Civil Code. The cause of action for exemplary damages, of course, does not survive under any theory.

Thus, although it is obvious that the complaint in some respects is subject to special demurrer, and should be redrafted, it was an abuse of discretion to sustain the demurrer without leave to amend inasmuch as the complaint states a cause of action not subject to general demurrer. The trial court in its discretion may require the clarification of uncertainties or ambiguities and the deletion of any allegations held improper in this opinion. Wennerholm v. Stanford Univ. School of Medicine, 20 Cal.2d 713, 128 P.2d 522, 141 A.L.R. 1358.

The judgment appealed from is reversed.

PETERS, Presiding Justice.

BRAY and FRED B. WOOD, JJ., concur.