126 A.2d 148 | Conn. Super. Ct. | 1956
The complaint is in two counts. In the first count the plaintiffs seek to recover from the defendant Mahoney for personal injury and property damage arising out of an alleged assault and battery, indecent assault, attempted rape and armed robbery committed while Mahoney was on duty as a police officer. This count is not attacked by the demurrer.
The second count, in which the same plaintiffs seek damages from the defendant Schendel, is the subject of the demurrer. The allegations of this count, including those incorporated by reference from the first count, are in substance as follows: Mahoney was a Manchester police officer and as such was a public peace officer whose duty it was to keep the peace, suppress violence and enforce the law. While on duty patrolling the highways, he stopped an automobile containing the plaintiffs, entered the vehicle, forced the plaintiffs to drive to a secluded spot, handcuffed them, forced them to leave the vehicle and committed an assault and battery, indecent assault, attempted rape, and armed robbery on them at the point of a gun and under threat of death, causing them serious personal injury and property damage. At the time this occurred, the defendant Schendel was the Manchester chief of police charged, among other duties, with "the control, discipline, appointment, suspension, removal, and expulsion of the members of the police department." The acts of violence and injuries inflicted on the plaintiffs by Mahoney were caused by the defendant Schendel's negligence in that (a) he employed and appointed Mahoney as a police officer, a position of public trust, "without making a proper investigation as to his qualifications, maturity, habits, health and moral character"; (b) "he failed to remove, expel, suspend or discipline" Mahoney when he knew or should have known that Mahoney *131
"was unfit and unqualified to safely and properly perform the duties of the office to which he had been appointed"; and (c) Schendel "failed to properly perform his duties as Chief of Police" as provided by the Manchester charter. These allegations must be considered as admitted for purposes of the demurrer.Cashman v. Meriden Hospital,
The demurrer attacks the cause of action thus attempted to be stated upon three grounds, namely: (1) "In attempting to sue the defendant as Chief of Police," the action is in effect against the town for negligence in performing a governmental function and, as such, is not a good cause of action; (2) as an action against Schendel individually the alleged breach of duty is one owed to the public generally rather than to the plaintiffs individually; and (3) Schendel as a public official is not, in the absence of statute, liable for the acts of his subordinates.
The first ground of demurrer must be overruled. The writ names the defendant Schendel as an individual and not as chief of police. His official position appears only in the recital of facts in the complaint upon which the claim as to his negligence is based. The action cannot be construed as in substance against the town. Leger v. Kelley,
The second and third grounds of demurrer may be considered together. The plaintiffs acknowledge the generally accepted proposition that the doctrine of respondeat superior is not applicable so as to make public officers legally liable for the negligence of their subordinate officers. Barker v. Chicago, P. St. L. Ry. Co.,
The plaintiffs seek to recover from the defendant Schendel solely for his own alleged negligent acts, quite distinct from the alleged wrongful acts of Mahoney. Reliance is placed principally uponFernelius v. Pierce,
Counsel have referred to no similar case in this state and the only comparable decision here which the court has discovered is Hurlburt v. Marsh, 1 Root 520. In that case, recovery was sought against the town of Litchfield for the default of a constable in making false service and return of process and, on demurrer, our court held the town not liable even though it knew the constable to be irresponsible when it appointed him. It is of further significance that the default of the officer in that case concerned a duty which might be construed as one owed to the individual. Leger v. Kelley,
The demurrer, being addressed to the substance of the second count, must fail if any facts provable under the allegations would support the cause of action attempted to be stated. Blakeslee v. WaterCommissioners,
Assuming for present purposes that such proof can be offered, the plaintiffs are nevertheless confronted with a further obstacle in the nature of the negligence with which they charge the defendant Schendel. The appointment of police officers, the adequacy of prior investigation of their qualifications and the like, and their disciplining or removal call for the exercise of judgment and consequently are discretionary duties. "Where the discretion has been exercised erroneously but in good faith through an error of judgment, the public official should not be required to pay damages for his acts." Wadsworth
v. Middletown,
The demurrer is sustained upon the second and third grounds.