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Cunning v. Humboldt County

District Court of Appeals of California, Third District
May 18, 1927
256 P. 841 (Cal. Ct. App. 1927)

Opinion

Hearing Granted by Supreme Court July 13, 1927.

Appeal from Superior Court, Humboldt County; Denver Sevier, Judge.

Actions by John Cunning against the County of Humboldt. Judgment for plaintiff, and defendant appeals. Reversed. COUNSEL

John F. Quinn, of Eureka, for appellant.

H. C. Nelson, of Eureka, for respondent.


OPINION

FINCH, P. J.

Six causes of action are stated in the complaint. The first is based on plaintiff’s claim for alleged personal services performed by him, as an employee of the district attorney of the defendant county, in the detection of crime and the gathering of evidence to be used in the prosecution of criminal cases, and for expenses incurred, and the use of plaintiff’s automobile in connection with the performance of such services. The other causes of action are based on similar claims of other employees of the district attorney, which claims were duly assigned to the plaintiff. The period of time covered by the claims is the month of July, 1925. Plaintiff’s claim is for "wages for July 1st to 31st, $5 per day, $155; " expenses for July, $17.05; "mileage 1251, at 15 cents per mile, $187.65." The assigned claims are as follows: George Wentworth: "31 days at $5 per day, $155; " expenses, $26.10; "927 miles at 15 cents per mile, $139.35." C. C. Hill: "27 days *** at $5 per day, $135; " expenses, $13; mileage 305, at 10 cents, $30.50. W. Hill: "23 days *** at $5 per day, $115; " expenses, $24.60. L. G. Hannaford: "19 days *** at $5 per day, $95; " expenses, $32.60. Stephen Hash: "1,196 miles at 15 cents per mile, $179.40." The claims were all duly presented to the board of supervisors for allowance as charges against the county.

Plaintiff’s claim and that of Wentworth were allowed in the amounts claimed for services and expenses, but rejected as to the compensation claimed for the use of automobiles. The other claims were entirely rejected. The answer denies that any services were performed, expenses incurred, or automobiles used by the claimants, and denies that the employment or services of the claimants or the use of their automobiles were necessary or that the compensation claimed is reasonable. At the close of the evidence the court directed the return of a verdict in favor of the plaintiff for the full amount demanded in the complaint. This appeal is from the judgment entered upon the verdict, which the jury returned in compliance with such instruction.

The main question on this appeal is whether there is any substantial evidence which would warrant a verdict in favor of defendant or a reduction of the amount awarded the plaintiff. "It is now settled that the right of a court to direct a verdict is, with regard to the condition of the evidence, absolutely the same as the right of a court to grant a nonsuit; and also that a court may grant a nonsuit only when, disregarding, conflicting evidence and giving to plaintiff’s evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such a verdict were given." Perera v. Panama-Pacific Int. Exp. Co., 179 Cal. 63, 64, 175 P. 454, 455. In that case the court had directed a verdict for defendant. Like a judgment of nonsuit, the directed verdict was against the party having the burden of proof. In this case it is in favor of the party on whom rests the burden of proof, a fact to be considered in determining the propriety of the court’s action. "There is a distinction *** between directing a verdict against and directing a verdict for the party having the burden of proof." 25 Standard Proc. 1063. Instructions directing verdicts in favor of the party having the burden of proof have been upheld in this state, but it has been said that "the practice is hazardous, and can be sanctioned only in the clearest cases." O’Connor v. Witherby, 111 Cal. 523, 528, 44 P. 227, 229.

The district attorney testified that during the month of July, 1925, he employed eight men, including the claimants, to do the character of work for which the claims involved herein are made; that during that month these men were employed "principally" in "securing evidence in the detection of crime in regard to the violation of the liquor laws," but that "very usually there was other work they did during that time"; that they were employed "to detect the commission of crime and to secure evidence for the prosecution of criminal cases" generally; that "a big part of their work" was "raiding" places where intoxicating liquors were manufactured or sold; that the men were paid at the rate of $5 a day during the time they were actually working and the cost of their meals and their hotel expenses when away from their homes; that "they had to use automobiles, as their work took them all over the entire county"; that he agreed to pay each of them who used his own automobile at the rate of 15 cents a mile; that the supervisors had fixed that rate "for the use of what they termed ‘dry squad cars"’; that from three to five of such employees would ride in each automobile; that the dangers of the work were such that it was necessary for the employees to travel in groups for their own protection; that "there wasn’t a day or an hour outside of the time they had to sleep but what there was work there to do"; that "they would assemble in the morning and had their work outlined for them"; that "Mr. McKay is the county detective, and *** he attended to the immediate detail himself, divided them up in squads, and sent some in one direction and some in another, filling any requests that came in"; that "invariably if they were to enter buildings they had search warrants"; that "sometimes if they know in advance of a car and person bringing it, they obtain search warrants of the courts" to search automobiles; that "generally one man carries the search warrant and the others assist him, *** searching and procuring the evidence"; that he "made no requests for their appointment as deputy sheriffs"; that "as a small accommodation" to the sheriff he would send one of the employees for a few minutes to take a prisoner from the county jail to "the justice of the peace, or bring him across to the courthouse"; and that he did not "know of any cars whatever that had been assigned to the use of the district attorney’s office either during the month of July or any other month." All the claimants were deputized by the sheriff of the county, and they all wore deputy sheriff’s badges. Hannaford testified that the work for which he claimed compensation was performed "mostly in liquor cases"; that he did not recall having done "any work on any other class of cases"; that he acted "as a member of the dry squad, going out on raids and securing evidence and detecting crime in connection with the prohibition enforcement law"; that he participated in many raids during the month of July; that he assisted in making arrests in some of the raids; that "a typical case is we arrest some one, we go out and a man working would have to put somebody under arrest and take the man in to the county jail and the balance of the squad would get in the machine and go back to the jail. That is the only assisting I did." Wellesly Hill testified that "some days we had as high as eight or nine or ten raids; other days we had only two or three"; that he had taken prisoners from the point of arrest to the county jail and from the jail to the courts and back "as a deputy sheriff employed by the district attorney’s office"; that his claim "covers not only going out and hunting up some evidence as a detective, but in addition covers the time *** occupied as a deputy sheriff in getting out a search warrant and going out and serving it" in making a raid, but that it was all done under the direction of the district attorney. Cunning testified that he took squads of employees on various trips in his automobile to make raids; that he charged for the time he occupied in getting the search warrants and going to the places where they were to be served; that "it was all in the day’s work"; that in making searches under authority of search warrants he "many times" broke open doors to gain entrance; that he was a deputy sheriff "for convenience in my work"; and that he was not paid as a deputy sheriff, but as an employee of the district attorney. Wentworth testified that the employees "never raided without a search warrant"; that "no raiding party is carried on without a search warrant held by some member of the squad"; that he assisted in breaking through doors "as a deputy sheriff and detective"; that during the month of July he assisted in making about seventeen arrests; that a part of his claim is for "taking prisoners *** to the county jail," that prisoners were brought in on return from raiding trips, but that no extra charge was made therefor. Hash testified:

"I got $5 a day. It did not make any difference whether I am getting a search warrant or taking a prisoner down to the jail, no matter what I am doing, I got $5 a day, no more.

"Q. In the month of July was there any portion of your claim for time taken up in taking a prisoner arrested from the place of arrest to the county jail? A. Certainly, if I go out to Wildwood and get a prisoner I am not going to leave him out there. *** If a prisoner is taken into town, I may take him to court and I get $5 a day, no more and no less. ***

"Q. And serving a warrant and doing those things *** and taking prisoners to court or taking him from the place of arrest was just as much a part of the work you were supposed to do as getting the evidence? A. Yes, sir. *** I don’t get anything for being a deputy sheriff. I take my orders from the district attorney. *** I am a deputy sheriff just for courtesy.

"Q. When you arrested people though, you arrested them not as a detective, but as a deputy sheriff? A. Yes; but I did not get any pay as a deputy sheriff.

"Q. Do you remember of any prisoner you took from the county jail to the justice’s court in that month? A. Yes, sir; I took several. ***

"Q. And you made your charge upon a mileage basis for taking yourself and the other employees out to where you were directed to go, and for coming back? A. Yes, sir; and bringing the prisoner back.

"Q. If you did not bring the prisoner, you got the same price as if you did? A. Just the same. *** I am getting my $5 a day no matter whether I am getting a search warrant or taking a prisoner or raiding. *** I am getting fifteen cents a mile for my car if I haul one or if I haul six or seven, and if I haul the prisoner, it is not any different."

It appears from the foregoing evidence that the services for which compensation is claimed were, to a considerable extent, the serving of search warrants and the making of searches thereunder. "A search warrant is an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him to search for personal property, and bring it before the magistrate." Pen. Code, § 1523. It is issued by the magistrate "to a peace officer in his county, commanding him forthwith to search the person or place named, for the property specified, and to bring it before the magistrate." Pen. Code, § 1528. "A search warrant may in all cases be served by any of the officers mentioned in its directions, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution." Pen. Code, § 1530. It is to be presumed that a peace officer to whom a search warrant is directed will do his official duty and execute the warrant, and the magistrate who issues the warrant is clothed with ample power to enforce its execution.

The authority of the district attorney to employ the claimants is found in section 4307, subdivision 2, of the Political Code, which provides that "all *** expenses necessarily incurred by him in the detection of crime and prosecution of criminal cases" are county charges. "Of course, the right of a district attorney to incur expense is not an arbitrary one. All that the section [228] of the County Government Act (St. 1897 p. 452) [in the identical language of section 4307 of the Political Code] permits is to give to the district attorney, in the first instance, the discretion to determine whether it is necessary in the detection of crime, or the prosecution of a criminal case, to incur an expense chargeable against the county. Any such claim, however, must be presented to the board of supervisors for allowance, and that body reviews the action of the district attorney and determines whether the expense was a necessary one and acts accordingly. *** Its determination that it was a proper and necessary expense is conclusive." County of Yolo v. Joyce, 156 Cal. 429, 432, 105 P. 125, 126. When the claims herein were rejected by the board of supervisors, however, "the foregoing considerations all became the subject of cognizance and determination in an action brought in the superior court." Thiel D. Co. v. Tuolumne County, 37 Cal.App. 423, 425, 173 P. 1120, 1121; Pol. Code, § 4078.

Whether the expense was "necessarily incurred" by the district attorney was a question of fact for the determination of the jury. In the absence of evidence showing why the execution of the search warrants was intrusted to the special agents of the district attorney rather than to the regular peace officers of the county, it cannot be held that the necessity of employing such agents for that particular service is so conclusively established as to warrant a directed verdict.

The expenses of employment by the district attorney of persons to perform the official duties which are enjoined by law upon other officers of the county are not "expenses necessarily incurred by him." The case of Cunning v. Carr, 69 Cal.App. 230, 234, 230 P. 987, 989, was decided in favor of the employees of the district attorney on the theory that they were employed as sleuths or detectives "to perform services outside of the duties cast by law upon the sheriff or a constable." Of course no one would contend that a person so employed would forfeit his right to compensation by the mere incidental performance of some act which falls within the official duties of a sheriff or constable.

Counsel for defendant made some slight effort to show that the county had provided automobiles for the use of the district attorney and his employees and that the district attorney had been so informed, but the attempt to make such proof was apparently abandoned. Evidence to that effect would be material as tending to show that the expense of hiring automobiles was not necessarily incurred. The other contentions of the appellant are not considered of sufficient importance or merit to require discussion.

The judgment is reversed.

We concur: HART, J.; PLUMMER, J.


Summaries of

Cunning v. Humboldt County

District Court of Appeals of California, Third District
May 18, 1927
256 P. 841 (Cal. Ct. App. 1927)
Case details for

Cunning v. Humboldt County

Case Details

Full title:CUNNING v. HUMBOLDT COUNTY.[*]

Court:District Court of Appeals of California, Third District

Date published: May 18, 1927

Citations

256 P. 841 (Cal. Ct. App. 1927)