299 P. 545 | Cal. Ct. App. | 1931
The negligent driving of a Los Angeles County car by Deputy Sheriff Dunn, resulting in damage to the person and property of the plaintiff, was made the basis of this action against the sheriff and the sureties on his official bond. To the complaint, which attempted to set up two causes of action, a general demurrer, interposed by the sheriff and his sureties, was sustained. Plaintiff declined to amend, and a judgment of dismissal and this appeal followed.
In addition to allegations sufficiently introducing the several defendants, and others portraying the results of the accident, plaintiff in her first count alleged:
[1] These allegations, taken of course with the others referred to, fail to state a cause of action against the sheriff and his sureties, even assuming that appellant is correct in the contention that the sheriff of Los Angeles County is burdened with the same liabilities as those on the shoulders of sheriffs of nonchartered counties. No breach of official duty appears. The liability of a sheriff for the acts of his deputies is not based on the theory that the relation of master and servant or principal and agent exists, but on the theory that the deputy is the representative of the sheriff, and his acts are those of the sheriff. (See Whitney v. Butterfield, (1859)
Tested by this standard, the negligent actions of Deputy Dunn give rise to no liability on the part of the sheriff and the sureties on his official bond. The purpose of his expedition may have been to perform an official act, but the character of that which he was doing at the time plaintiff suffered injuries was not official. The sheriff had not yet begun to act, for he is not a county chauffeur. This same conclusion was reached in McVea
v. Day, (1927) 6 La. App. 383, and Usrey v. Yarnell, (1930)
[2] But if this were not the rule and the sheriff should be responsible if his deputy was on an errand the end of which was the performance of an official act, still the first count of the complaint before us is insufficient. The several expressions "acting in his official capacity of Deputy Sheriff", "as a Deputy Sheriff" and others of a like nature add nothing. "It is stated that he was acting in his official capacity as constable, but such allegation does not state any fact, — only a mere conclusion." (Felonicher v. Stingley, supra, p. 632.) Facts
showing that he had in his possession a valid warrant of arrest which it was the duty of the sheriff *64
of Los Angeles County to serve and so of his deputy, are only hinted at, they are not alleged. The requirements of pleading in such a case are not satisfied. (People v. Beach, supra;People v. Pacific Surety Co., (1910)
[3] Plaintiff's second cause of action, judging from the argument made in support of it, is predicated on the proposition that one who permits a car under his control to be driven by one he knows to be incapable of driving it carefully, is responsible for the results. There is a failure to allege facts which make this principle applicable. Paragraph VI is incorporated in count II by reference, and plaintiff continues by alleging:
Recitals by way of inference are insufficient. In People v.Jones, (1899)
Houser, Acting P.J., and York, J., concurred.