LOLA MAE FERNELIUS а Minor, etc. et al., Appellants, v. AUGUST PIERCE et al., Defendants; BODIE A. WALLMAN et al., Respondents.
S. F. No. 16768
In Bank. Supreme Court of California
May 18, 1943
June 14, 1943
21 Cal.2d 226
In my opinion the judgment should be reversed.
Curtis, J., and Peters, J. pro tem., concurred.
Appellant‘s petition for a rehearing was denied June 14, 1943. Curtis, J., Carter, J., and Schauer, J., voted for a rehearing.
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F. Bert Fernhoff, City Attorney, John W. Collier, Assistant City Attorney, Hagar, Crosby & Crosby, Peter J. Crosby, Jr., and Thomas E. Davis for Respondents.
SCHAUER, J.---This case squarely presents the question as to whether public officials are liable in damages for injuries proximately resulting from their negligent failure to suspend or discharge known unfit and vicious subordinates, the officials having notice of the subordinates’ unfitness and viciousness and having the power to suspend and remove them subject, however, to review by a civil service board. We conclude that the power to suspend or discharge the subordinates from duty and to start proceedings for their removal from civil service lists carries with it the correlative duty to vigilantly exercise the power, and that the negligent failure of such officials to act leaves them answerable in damages to persons who have suffered loss proximately resulting from such negligence.
This is an appeal by plaintiffs from a judgment in favor of certain defendants entered upon an order sustaining their demurrers to the complaint without leave to amend. All factual matters related herein are taken from the complaint, and by the demurrers and for the purposes thereof are confessed by the defendants to be true.
Plaintiffs Lola Mae Fernelius, Ardella Fernelius, Donald Fernelius and Ralph Fernelius are the infant children, and Mable Fernelius is the widow, of Fred Fernelius, deceased. The lаtter, while he was a prisoner in the Oakland City Jail, was so viciously and bestially assaulted and beaten by certain Oakland city police officers (defendants August Pierce and Glen Hancock) as to cause his death on the following day.
The Pleading
No question is raised as to the sufficiency of the pleading
As to City Manager Hassler: That “as said city manager he was and is responsible for the proper and efficient administration of all the affairs of the city, and, subject to the civil service provisions, hаd at all times herein mentioned the power to appoint, discipline and remove all directors or heads of departments, all the chief officials and all subordinate officers and employees of the city responsible to him; that defendants August Pierce and Glen Hancock as police officers of the City of Oakland were responsible to him, the said city manager; that as the city manager said defendant John F. Hassler had at all times herein mentioned the power, subject only to the civil service provisions as aforesaid, to remove all police officers, and specifically defendants August Pierce and Glen Hancock, at any time he found them unfit or incompetent to perform their duties as police officers of the City of Oakland, or for misconduct or incompetency in the performance of their duties. That the civil service provisiоns to which the power of defendant John F. Hassler as said city manager was and is subject to as aforesaid, provide that all persons holding positions in the classified civil service shall be subject to suspension, fine and also to removal from office or employment, by order of the city manager, for misconduct, incompetence or failure to perform their duties, subject, however, to an appeal by the aggrieved party to the Civil Service Board within five days from the making of the order. That plaintiffs are informed and believe and on such information and belief allege the fact to be, that defendants August Pierce and Glen Hancock as police officers of the City of Oakland held at the times herein mentioned positions in the classified civil service of said City of Oakland.”
As to Chief of Police Wallman: That “as chief of police of the City of Oakland ... [he] was аt the times herein mentioned the chief executive of the police department of the said city, responsible for the execution of all laws, orders, rules and regulations of said department; that plaintiffs are
As to the Incompetence and Unfitness of the Subordinate Officers and Notice Thereof to the Superior Officials: “That defendants August Pierce and Glen Hancock were unfit and incompetent to perform their duties as police officers of the City of Oakland as follows, to wit: that said August Pierce and Glen Hancock were vicious, high tempered, and addicted to the use of unnecessary force and violence and likely to unlawfully assault, beat, wound, ill-treat and use unnecessary force and violence against any person in their charge as police officers of the said City of Oakland. That defendants Bodie Wallman and John F. Hassler prior to May 4, 1940, knew, or should have known in the exercise of due care, of the aforesaid incompetence and unfitness of defendant August Pierce and defendant Glen Hancock to perform their duties as police officers of the City of Oakland; that on the following occasions defendant August Pierce did unlawfully assault, beat, wound and abuse the fоllowing persons, who were in his charge as a police officer of the City of Oakland, in the following manner, to wit: that on or about December 24, 1939, said defendant August Pierce sheared off the finger of one Jose August by shutting a jail door on the same; that on or about February 4, 1939, said defendant beat and wounded one Kenneth Warner; that on or about August 9, 1938, said defendant August Pierce and defendant Glen Hancock beat with a stick or club one Edison Shumate so severely that it was necessary that he be sent to a hospital for treatment; that on or about December 13, 1937, said defendant August Pierce struck one Orval Rodgers with such force that his jaw was broken and that said defendant left him in his cell the said night of said December 13, 1937, without medical treatment of any kind; that on or about November 1, 1939, said defendant August Pierce beat and clubbed on the head one Howard Lyon; that on or about May 1, 1938, said defendant August Pierсe beat and abused one Dee Otis Roberts; that on or about August 6, 1938, said defendant August
As to Presentation of Claim: The complaint further alleges the timely presentation of a claim by all plaintiffs, for the wrongful death of the deceased, to the clerk of the City of Oakland, and to defendants Pierce, Hancock, Hassler and Wallman, and the rejectiоn thereof by all defendants.
As to the Bondsman: Allegations of the complaint pertinent exclusively to the bondsman are discussed later in this opinion.
Statutory Law Governing Treatment of Prisoners
The Charter of the City of Oakland provides (
The civil service provisions of the charter declare that (
Likewise by the charter it is enacted that (
In the ensuing discussion, except as otherwise indicated, we refer to the respondents-defendants Hassler and Wallman (the city manager and the chief of police) as the defendants. Both plaintiffs and defendants unite in stating that plaintiffs’ case is not laid on the doctrine of respondeat superior. Nevertheless, much of the argument and most of the authorities cited to us deal with that doctrine because under it, and in the cases dealing with it, defendants find principles of law which they claim exculpate them from responsibility, and plaintiffs, in seeking to develop and delineate the theory they espouse, must deal with those principles and differentiate some of them in steering their course to the end of holding defendants liable in the premises. It is unnecessary for us to assert academically whether plaintiffs’ cause of action relates at all to that doctrine or is wholly independent of it. However, a clear distinction between plaintiffs’ theory and the typical one of respondeat superior is necessary at the outset.
Under the rule of respondeat superior, as ordinarily understood, the master is held liable for the torts of his servants committed within the course of their employment. In the typical case the neglect is only that of the servant; the master is himself without fault. But because the servant is engaged in the master‘s work and is doing it in place of, or for, the master, the act of the servant is regarded as the act of the master. Responsibility devolves up through the relationship to the master and the question of proximate cause of the injury relates only to the act (or neglect) of the servant.
In the case now presented by plaintiffs, however, we have a basically different factual pattern. The neglect charged here was not that of the subordinate officers; they did what was reasonably to be expected of them in view of their known propensities. The neglect that is pleaded is that of the defendants themselves. The legal fault charged here as the ground of liability is directly and personally that of the superior officers (the defendants). Responsibility is not claimed to devolve up to them merely derivatively through a relationship of master and servant or principal and agent. The fact that the killer-officers were employees subordinate to the defendants is essentially material here, not for the purpose of tracing responsibility for their acts up to defen
That as a general rule it is negligent to use an incompetent or unfit instrumentality there can be no question. The American Law Institute in its Restatement of the Law of Torts (vol. II, Negligence (1934), sec. 307, p. 833) states the rule as to responsibility for use of an incompetent instrumentality as follows: “It is negligence to use an instrumentality, whether a human being or thing, which the actor knows or should know to be so incompetent, inappropriate, or defective, that its use involves an unreasonable risk of harm to others.” By way of illustration the Institute states this case (at p. 834): “A, the proprietor of an apartment house, employs a janitor, B, a man whom A knows to be of an exceedingly fiery and violent temper. C, one of A‘s tenants, complains to B in regard to lack of heat. B becomes violently angry and attacks and harms C. Irrespective of whether B‘s act is within the course of his employment as janitor, A is liable to C.”
Defendants’ Contentions
Defendants contend in effect that a principle (hereinafter stated) enunciated in respondeat superior cases dealing with claims against public officials for the acts or neglects of subordinates is controlling here, that such principle precludes recovery under that doctrine, and that if plaintiffs cannot recover on the respondeat superior theory they are wholly without remedy as against the superior officеrs.
Law Points
The principle so enunciated is stated as an exception to the respondeat superior rule. It is the proposition that superior public officers generally are not liable for the torts of their subordinates where such subordinates are likewise
Likewise in Michel v. Smith (1922), 188 Cal. 199 [205 P. 115], asserted by both plaintiffs and defendants to be the leading case on the subject in this state, the rule is stated in varying language. At page 201, it is declared as follows: “There is a well-defined exception to the general rule which renders one responsible in a civil action for the tortious acts of those employed by or under him. A public officer is not responsible for the acts or omissions of subordinates properly employed by or under him, if such subordinates are not in his private service, but are themselves servants of the government, unless he has directed such acts to be done or has personally co-operated therein.” Again, at page 202 (of 188 Cal.) it is stated, “He [a chief of police] may even be charged with the duty of selecting the members of the force, but he is not responsible for their acts, unless he has directed such acts to be done, or has personally co-operated in the offense, for each policeman is, like himself, a public servant.” These “exceptions“---personal direction of, or cooperation in, the offense---obviously are personal faults of the superior. So also is failure to use ordinary care in the employment or discharge of a subordinate. Mr. Floyd R. Mechem in his book entitled “Public Offices and Officers” (1890, Callaghan and Company) lists more “exceptions” of the same character. He states the general rule and then says (sec. 790, p. 529): “But this general rule is subject to certain exceptions, important to be borne in mind and as well settled as the rule itself. Thus the superior officer will be liable, (1) where, being charged with the duty of employing or retaining his subordinates, he negligently or wilfully employs or retains unfit or improper persons; ... or (3) where he so carеlessly or negligently oversees, conducts or carries on the business of
We find no authority, case or text, in which a public officer is said to be exculpated from liability in a case such as that here pleaded. In stating the general rule of nonliability of public officers for the torts of their subordinates, case and text authors usually have been vigilant in their care not to imply immunization for such a case. Thus in the annotation in 12 American Law Reports, Annotated, at page 980, the language is: “According to both the early and the more recent cases it is well settled as a general rule, subject, however, to a number of exceptions, that in the absence of a statute imposing liability, or of negligence on his part in appointing or supervising his assistants, neither an officer nor his bondsman is liable for the defaults and misfeasances of assistants appointed by him, provided that the assistants ... become ... officers themselves, or servants of the public.” (Italics added.) Again, Shearman and Redfield in their text on Negligence (Baker, Voorhis & Co., Inc., 1941, revised ed., vol. 2, sec. 330, p. 805) state, “All public officers who have the power of appointing their subordinates are bound to exercise ordinary
In American Jurisprudence (43 Am.Jur., sec. 281, pp. 94, 95) the rule is stated in language almost identical with that quoted herein from the annotation in American Law Reports, Annotated, and it is further declared: “And where an officer fails in a duty to take action, liability may be predicated on nonaction after knowledge of the negligence of subordinates has come to his attention.” In Strickfaden v. Greencreek Highway Dist. (1926), 42 Idaho 738, 763 [248 P. 456, 49 A.L.R. 1057, 1071], the court said: “The rule of respondeat superior does not apply where public officers are sought to be bound by the negligence of subordinate officers or employees, unless there has been a failure to exercise due care in the selection of such subordinates, or the officers have knowledge of the negligent acts of the inferior officers.” To the same effect is Doeg v. Cook (1899), 126 Cal. 213 [58 P. 707, 77 Am.St.Rep. 171], and the rule is impliedly recognized by this court in Hilton v. Oliver (1928), 204 Cal. 535 [269 P. 425, 61 A.L.R. 297], wherein Mr. Justice Shenk, speaking for the court, scrupulously avoids a contrary implication in disposing of a case wherein there was evidence of negligence by employees but not by the superiors. The opinion specifically points out (p. 539) that “there was no evidence whatever in the record, either directly or by reasonable inference, that the defendant trustees knew anything at all about such [the negligent] action on the part of said employees in doing the work,” and then (p. 540) holds: “As the record herein does not disclose that the defendant trustees directed or cooperated in or knew of the alleged acts of negligence on the part of the subordinate agents and employees of the district or were at all remiss in the matter of their appointment, the evidence was wholly insufficient to support the verdict.” In the same case this court also recognized the distinction between the doctrine of respondeat superior and the theory of direct, рersonal negligence which plaintiffs invoke in the case at bar. The court in distinguishing the cases of Perkins v. Blauth (1912), 163 Cal. 782 [127 P. 50], and Proper v. Sutter Drainage Dist. (1921), 53 Cal.App. 576 [200 P. 664],
The case of Hale v. Johnston (1918), 140 Tenn. 182 [203 S.W. 949], an action against county commissioners and others to recover damages for beatings resulting in the death of a prisoner, presents a factual and legal situation pertinently similar to the case before us. There was there, as there is here (
“[P. 200 of 140 Tenn., p. 953 of 203 S.W.] From what has been said, it naturally follows that the failure of defendants to discharge their duties in the premises was the proximate cause of the punishment inflicted upon deceased. If they had been diligent to see that corporal punishment was not practiced as a part of the discipline of the workhouse, it is apparent that deceased would not have been killed in the manner in which he was. This is different from the case of an outbreak of temper upon the part of a guard, followed by a blow which takes the life of an inmate. For this we apprehend defendants would not be liable. But the case made by plaintiff, both in the declaration and in the proof, is that corpоral punishment was a part of the system of discipline of the workhouse, and was constantly practiced in the most brutal ways for many years, and that defendants knew, or by the exercise of ordinary care could have known, of its existence.”
In Michel v. Smith (1922), supra, 188 Cal. 199 [205 P. 115], this court was dealing only with the general rule of nonresponsibility of public officers for the acts or omissions of their subordinates. It had no occasion to consider, formulate, or express any such exception to the rule as that
We are of the opinion that permitting an act, where one has knowledge that it is impending and has the power and duty to prevent it, is the equivalent of directing it, so far as legal responsibility therefor is concerned.
Defendants contend that they should not be held accountable for failing to suspend or remоve the known incompetent and unfit officers because such officers had a right of appeal to the civil service board and such board had the ultimate power to affirm or overrule their orders. They urge, in other words, that they should not be held responsible unless they had the wholly unrestricted power to employ and discharge subordinates. In support of this thesis they cite Union Bank & Trust Co. v. Los Angeles County (1938), 11 Cal.2d 675, 679 [81 P.2d 919], wherein it is stated that “It may be conceded that in the absence of statute the modern view is opposed to making public officers civilly liable for torts of deputies, where the latter are themselves statutory officers and not under the superior‘s unrestricted control or right of hiring and discharging.” Careful reading of the quotation itself discloses that it is not pertinent to the case before us. This court there was dealing with the question of holding a superior officer liable for the tort of a deputy purely under the doсtrine of respondeat superior where no personal neglect of the superior, proximately causing the loss, was alleged. There is no implication that the ruling was intended to apply in a case where the superior
The several other cases cited by defendants enunciating in varying language the proposition stated in the Union Bank & Trust Co. case (supra, 11 Cal.2d 675) are all equally subject to differentiation from the case we are considering. In Van Vorce v. Thomas (1937), 18 Cal.App.2d 723, 726 [64 P.2d 772], the District Court of Appeal recited typical facts as to the personnel organization of a large office, but containing no implication of negligence on the part of the head of the office, and declared, “Under such circumstances, to make the head of the office respond in damages for the negligent discharge of duties, which he has no choice but to delegate to others, becomes ‘manifestly unjust.‘” But certainly it is not “manifestly unjust” to hold a superior officer to reasonable diligence in the discharge of his own duties.
It is a reasonable inference that the consequences flowing from the neglect of the defendants were to be apprehended by them as likely to result therefrom. A trier of the fact might well conclude that the warning implicit in the pleaded conduct of police officers Pierce and Hancock was more shockingly imperative in its demands for affirmative action than words could be. One could perhaps doubt that a human being, though he avowed his intent in words, would at the test be depraved enough to carry into execution the conduct alleged. But if it were known, as averred here, that there were persons who actually possessed and indulged such propensities, the deliberate toleration of such
The law giving to a superior officer the power to susрend or remove subordinates would be little more than a contribution to the ego of the superior if it did not likewise place on him the correlative duty of vigilantly exercising that power in the protection of the public interest. Against bestiality and brutality by police officers of the type depicted in this case the public has no adequate protection unless the superiors are answerable for any lack of vigilance in the discharge of their duty. There is no more reason for excusing negligent failure to perform a restricted duty, if such duty faithfully performed would, in the ordinary course of events, be adequate to prevent the damage, than there is for excusing such failure to perform an unrestricted duty.
The argument that the city manager might have overruled the chief of police if he had acted to suspend the unfit officers, or that the Civil Service Board might have restored them to duty after discharge by the city manager, is but speculation based on an unsound premise---the premise that the manager or board is presumed to act improperly after previous proper action by the party primarily charged with the duty. No such presumption can be indulged. It follows that a cause of action is stated as against defendants Hassler and Wallman.
Liability of the Bondsman
The complaint further alleges the execution of a bond by the defendant Fidelity and Deposit Company of Maryland by the terms of which it undertook, in the sum of
Defendant surety company adopted the argument of the defendants Hassler and Wallman that they were not responsible in the premises and in addition contends that it is not liable to plaintiffs for defendants’ default because of the form and substance of the instrument executed and the law governing its conditions. Such contention is not tenable.
In presenting its position the defendant surety company emphasizes that the instrument executed by it states an agreement “to indemnify and hold harmless the City of Oakland ... and/or its officers and/or councilmen” (italics added) against loss but does not purport to run in favor of any other obligee. However,
Defendant surety company says that the section is not applicable because the bonding of city officers is a municipal affair and the Oakland City Charter provides for a bond conditioned in favor of the city but not in favor of its citizens. It relies upon Sunter v. Fraser (1924), 194 Cal. 337 [228 P. 660], and Municipal Bond Co. v. City of Riverside (1934), 138 Cal.App. 267 [32 P.2d 661]. The first cited case (Sunter v. Fraser) contains the statement (at p. 340), “appellants point out that section 961 is a part of article 9, which covers the subject of official bonds to be given by state, county and township officers only (Rowe v. Rose, 26 Cal.App. 744, 745 [148 P. 535]).” Obviously an error crept into that statement. Rowe v. Rose (1915), 26 Cal.App. 744 [148 P. 535], cited as authority, merely mentions (at p. 745) that “under section 950 of the Political Code, the official bonds required to be filed with the county clerk are those of ‘county and township officers.‘” (Italics added.) Article 9 of chapter 7, title 1, part 3, of the Political Code covers bonds of public officers generally, city as well as state, county and township (see
In the case of Municipal Bond Co. v. City of Riverside (1934), supra, 138 Cal.App. 267 [32 P.2d 661] the District Court of Appeal held that under the wording of the charter there involved the city had “expressly declared its independence from the control of general laws as to municipal affairs” (138 Cal.App. at p. 278) and that
The provisions of the Oakland City Charter are, however, definitely different from those the District Court of Appeal dealt with in the case cited. Whereas the Riverside Charter asserted the right “to make and enforce all laws ... in respect to municipal affairs, subject only to the restrictions and limitations provided in this charter,” (italics added) the Oakland Charter declares (
There is nothing in the foregoing charter provisions which is inconsistent with the right of plaintiffs to sue under
As to the substance and form of the contract executed by the surety company here, it must be construed in the light not only of
The judgment is reversed and the cause is remanded to the superior court with directions to overrule the demurrers of the defendants Bodie A. Wallman, John F. Hassler and Fidelity and Deposit Company of Maryland, a corporation.
Gibson, C. J., Curtis, J., Carter, J., and Traynor, J., concurred.
Edmonds, J., concurred in the judgment.
SHENK, J.---I concur in the judgment of reversal on the ground that the allegations of the complaint are sufficient to require the defendants Hassler and Wallman to answer, particularly the allegations of prior knowledge on their part of the vicious propensities of the malefactors, Pierce and Hancock, and of failure to institute timely disciplinary proceedings against them. These allegations, the truth of which is admitted for the purposes of the demurrer, bring the case fairly within the rules announced in Michel v. Smith, 188 Cal. 199 [205 P. 115], and similar cases. The civil service provisions of the Oakland City Charter are in essential respects the same as the provisions of the Los Angeles City Charter involved in the Michel case. A sound public policy supports the general rule of non-liability of superior public officers, for the torts of inferior civil service officers and employees and exceptions to that rule should not be extended; otherwise the assumption of public office with liability for the misdeeds of inferiors occupying civil service positions, many times numbering thousands, would indeed be a hazardous undertaking.
Respondents’ petition for a rehearing was denied June 14, 1943.