Opinion
Page __
__ Cal.App.2d __ 227 P.2d 300 COVERSTONE v. DAVIES et al. MOCK v. DAVIES et al. MOCK et al. v. DAVIES et al. Civ. 18020-18022. California Court of Appeals, Second District, Second Division Feb. 16, 1951.Hearing Granted April 16, 1951.
Rehearing Denied March 5, 1951.
As Corrected Feb. 27, 1951.
[227 P.2d 301] C. Paul DuBois, Los Angeles, for appellant.
H. Burton Noble, City Atty., Frank L. Kostlan, Asst. City Atty., and Robert E. Michalski, Deputy, all of Pasadena, for respondents I. M. Frakes, Jr., R. N. Chase, Ben Brown, Clarence H. Morris, and Harold M. Hines.
Crider Runkle & Tilson and Donald Ruppe, all of Los Angeles, for respondents American Bonding Company of Baltimore and Fidelity & Deposit Company.
Harold W. Kennedy, County Counsel, William E. Lamoreaux, Deputy, Los Angeles, for respondents L. N. Davies, E. V. Mansell, R. A. Cook, W. C. Mortenson, N. L. Hoskins, William Knezevich.
Anderson, McPharlin & Conners, Los Angeles, for respondent Hartford Accident & Indemnity Co.
McCOMB, Justice.
These are appeals from judgments of nonsuit rendered by the trial court in three actions which were consolidated for trial before a jury. All three actions are based on the arrest of Warren Coverstone and William L. Mock for a violation of section 407, Penal Code (unlawful assembly), and their subsequent trial wherein they were acquitted.
In the actions in which the two boys are plaintiffs the complaints included causes of action for (a) false arrest, (b) malicious prosecution, (c) assault and battery, and (d) conspiracy and trespass. In the third case the father and mother of William Mock are plaintiffs and their complaint contains counts of invasion of privacy, trespass, conspiracy and negligence predicated upon the arrest and prosecution of their son.
The defendants in all three actions are the Sheriff of Los Angeles County, five of his deputies, the bonding companieds on the bond of the sheriff and his deputies; the City Manager, Chief of Police and three police officers of the City of Pasadena and the bonding company on the official bonds of these officers.
Facts: At about 9 a.m. of January 17, 1947, some 29 Pasadena Junior College students, including plaintiffs Coverstone and Mock, assembled on Sierra Madre Villa Street in county territory. They were congregated in various groups on both sides of the street and had arrived there in five or six automobiles owned and operated by members of the group, the two boys in question riding in cars driven by their classmates.
[227 P.2d 302] While they were so gathered, three of the cars lined up and took off in a race in a westerly direction on Sierra Madre Villa. Defendants N. L. Hoskins and E. V. Mansell, two of the deputy sheriffs arrived at the scene in a sheriff's patrol car and the assembled students dashed to the remaining cars in an attempt to get away. The two officers held that group together and the three cars which had engaged in the race returned.
Shortly thereafter another sheriff's car arrived containing defendants Davies and Cook of the sheriff's office, and two other deputy sheriffs. The group of students was escorted to the sheriff's Altadena substation and after questioning the desk sergeant ordered defendants Mortenson and Knezevich to take plaintiffs Coverstone and Mock to the Pasadena city jail and book them. After being booked at the jail the two boys were released at about 3 p.m.
January 29, 1947, defendant Davies, after conferring with deputy district attorney Hopkins and upon his advice, signed and filed complaints against the two boys charging them with violation of section 407 of the Penal Code.
The accused were acquitted by a jury.
Plaintiffs contend that the trial court improperly granted defendants' motions for nonsuit.
First: As to plaintiffs Rolla D. Mock and Velma M. Mock the trial court properly granted the motion for nonsuit.
The rule is correctly stated in 39 American Jurisprudence (1942), Parents and Children, pages 719, 720, section 75, as follows:
'Likewise, no cause of action lies in favor of the parent for the malicious prosecution or false imprisonment of his child, even where his wife dies as a result of the shock, although recovery will be allowed where there is an actual loss of the services of the child. And although there is authority to the contrary, it is held in the preponderant line of decisions that the child only, not the parents, can sue for its wrongful expulsion from school. Refusal to permit recovery in these cases is in accord with the general rule restricting a right of action for mental suffering to the person who receives the injury.'
In 34 American Jurisprudence (1941), Malicious Prosecution, Page 754, section 82, it is stated:
'Generally speaking, any person bringing himself within the requirements previously enumerated in this article may maintain an action for malicious prosecution. The right, however, seems to be purely a personal one. Thus, it has been held that a father cannot bring an action to recover in his own right because of a wrongful prosecution of his minor children which has caused suffering to him, although he may bring the action in the capacity of tutor for the injured minors, and may sue for a malicious prosecution of a child which results in actual loss of his services. It has also been held that a corporation may not maintain an action of malicious prosecution for the recovery of damages sustained by it by reason of the malicious prosecution of a proceeding against one of its officers.'
The foregoing rules are applicable to plaintiffs Mock, and under such rules the evidence failed to show any cause of action on their behalf which would have supported a cause of action against defendants or any of them.
Second: Defendant Chase, the jailer, was not present when plaintiffs Mock and Coverstone were booked, therefore there was no evidence to sustain a judgment against him, and the nonsuit was properly granted.
Third: There is nothing in the record to show that defendant Brown participated in any of the alleged wrongful acts and there is a total failure of any evidence which discloses that he was negligent in the selection of his subordinates. Therefore the court properly ordered a nonsuit as to such defendant.
Fourth: As to defendants Biscailuz, Davies, Mansell, Cook, Mortenson, Hoskins, Knezevich, Morris, Hines and Frakes, viewing the evidence in the light most favorable to plaintiffs, as it must be on a motion for nonsuit, it would support a judgment [227 P.2d 303] in favor of each of the plaintiffs other than plaintiffs Rolla D. Mock and Velma M. Mock on each cause of action alleged in their complaints.
The fact that the complaint was filed after consultation with the district attorney did not act as a complete bar to the action in view of the fact that the jury might have believed that the officers did not file the complaint in good faith, since it was disclosed that in a conference at which one of the deputies was present prior to the time the complaint was filed, it was stated that 'We are afraid of a law-suit' and 'unless we are released from liability we will have to sign a complaint to protect ourselves.'
Hence, had the jury found that the prosecution was not instituted in good faith, the fact that they had consulted with the district attorney prior to the commencement of the same did not protect them. It needs no citation of authority in support of the proposition that the sheriff is liable for the improper acts of his deputies. As to these defendants the trial court improperly granted the motion for nonsuit and it must be reversed.
Fifth: As to Fidelity and Deposit Company and the American Bonding Company of Baltimore, since they issued bonds covering the county officers, the motion was improperly granted as to them and must be reversed. The same situation obtains relative to defendant Hartford Accident and Indemnity Company which issued a bond covering the officials of the City of Pasadena.
There is no merit in the contention that plaintiffs may not maintain an action against the bonding companies since they are not named in the bonds, because section 1550 of the Government Code, subsection (b), provides that any person injured or aggrieved by the wrongful act or default of an officer in his official capacity may bring suit on the official bond given pursuant to law in his own name. (See Abbott v. Cooper, 218 Cal. 425, 430, et seq., 23 P.2d 1027; Union Bank & Trust Co. v. Los Angeles County, 11 Cal.2d 675, 679, 81 P.2d 919.
1. The judgment is affirmed as to plaintiffs Rolla D. Mock and Velma M. Mock. It is also affirmed as to defendants Chase and Brown.
2. The judgments are reversed as to defendants Davies, Mansell, Cook Mortenson, Hoskins, Knezevich, Biscailuz, Morris, Hines, Frakes, Fidelity and Deposit Company, American Bonding Company of Baltimore and Hartford Accident and Indemnity Company on the complaints filed by Warren Coverstone and William L. Mock.
MOORE, P. J., and WILSON, J., concur.