Opinion
3-18-1959
Ada E. DAVIS, Helen Davis, Morris Davis and Ida Mae Wrey, Plaintiffs and Appellants, v. R. R. KENDRICK, Kenneth Freelan, Does I, II, III, IV, V and VI, Defendants. Robert R. Kendrick, Respondent. * Civ. 23364.
Simmons & Simmons, Herbert W. Simmons, Jr., Los Angeles, for appellants. Roger Arnebergh, City Atty., William B. Burge, Deputy City Atty., Los Angeles, for respondent.
Ada E. DAVIS, Helen Davis, Morris Davis and Ida Mae Wrey, Plaintiffs and Appellants,
v.
R. R. KENDRICK, Kenneth Freelan, Does I, II, III, IV, V and VI, Defendants.
Robert R. Kendrick, Respondent. *
March 18, 1959.
Hearing Granted May 13, 1959.
Simmons & Simmons, Herbert W. Simmons, Jr., Los Angeles, for appellants.
Roger Arnebergh, City Atty., William B. Burge, Deputy City Atty., Los Angeles, for respondent.
HERNDON, Justice.
Plaintiffs, appeal from a judgment entered on the granting of defendant Kendrick's motion for summary judgment. Plaintiffs sought by their amended complaint to recover damages for a wrongful death, alleging that the death of their decedent resulted from an assault and battery committed by defendants Kendrick and Freelan. Defendant Kendrick moved for summary judgment supported by affidavits stating the following uncontradicted facts: (1) that at the time the assault was allegedly committed, Kendrick was a uniformed police officer of the city of Los Angeles, and a peace officer of the State of California, engaged in the performance of his reguarly assigned duties as a police officer. (2) That plaintiffs filed no claim or demand with the City Clerk of the city of Los Angeles.
The motion for summary judgment was made upon the grounds that the action was barred by sections 363 1 and 376 2 of the Charter of the city of Los Angeles. The parties agree that the determinative question of law is whether a police officer is an 'officer' within the meaning of that term as it is used in sections 363 and 376. Appellants concede that if this question is answered in the affirmative, the judgment must be affirmed. We conclude that it must be so answered.
It has been said that the term 'officer' implies '* * * an authority to exercise some portion of the sovereign power of the state, either in making, executing or administering the laws' and that while a policeman may not be an officer in every sense of the term '* * * in the discharge of his duties [he] does stand in a relationship to the governing authority differing greatly from that of a mere employee or agent, and that relationship for many purposes is indistinguishable from and may be classified as that of a public officer.' Noble v. City of Palo Alto, 89 Cal.App. 47, 52, 264 P. 529, 531. In Logan v. Shields, 190 Cal. 661, 665, 214 P. 45, 46, the Supreme Court in deciding the status of a traffic officer employed by the county of San Mateo declared: 'It clearly follows that as the duty of the petitioner herein was to regulate traffic upon the public streets of the county of San Mateo, he was to that extent exercising a part of the sovereign power of the state, and for that reason was a public officer, as distinguished from a mere employee, such as a street sweeper or laborers upon the highway.' Other decisions in which police officers have been classified as public officers are City of Oakland v. Lyckberg, 95 Cal.App. 71, 73, 272 P. 606; Brown v. Boyd, 33 Cal.App.2d 416, 422, 91 P.2d 926; Michel v. Smith, 188 Cal. 199, 201, 205 P. 113, and Estrada v. Indemnity Ins. Co., 158 Cal.App.2d 129, 133-135, 322 P.2d 294.
In Slavin v. City of Glendale, 97 Cal.App.2d 407, 411, 217 P.2d 984, the plaintiff sought to recover damages from certain individuals who were police officers of the city of Glendale for an alleged assault and battery. The Charter of the city of Glendale contained provisions essentially the same as those of the Los Angeles Charter here involved. In affirming a judgment in favor of the defendant police officers, Division One of this court declared: 'The basic fact which must be recognized is that plaintiff's cause of action, however stated, was one for assault and battery committed by police officers of the city of Glendale. Plaintiff did not and could not allege that the required claim had been filed as required by the law, either within the 90-day period or at any other time.' The decision in Klimper v. City of Glendale, 99 Cal.App.2d 446, 222 P.2d 49, makes a holding to the same effect.
Appellants place their entire reliance upon the decision in Mason v. City of Los Angeles, 130 Cal.App. 224, 20 P.2d 84. The question presented in that case was whether a fireman was a 'public officer' of the city within the meaning of charter provisions governing the right of a public officer to receive his salary after becoming incompetent to perform the duties of his office. The decision is not controlling here because the problem there presented was resolved in the context of charter provisions entirely different from those involved in the instant case. Moreover, it is obvious that the duties of a fireman are very different from those of a police officer. It is unnecessary for us here to express any opinion as to whether or not a fireman is an officer of the city within the meaning of the charter provisions here involved.
The judgment is affirmed.
FOX, P. J., and ASHBURN, J., concur. --------------- * Opinion vacated 341 P.2d 673. 1 'Sec. 363. Every claim for money or damages against the city, or any officer, board or department thereof, except as provided in the preceding section, shall be filed with the City Clerk, who shall thereupon present the same to the board, officer or employee authorized by this charter to incur or pay the expenditure or alleged indebtedness or liability represented thereby. In all cases such claim shall be approved or rejected in writing and the date thereof given. Failure to act upon any claim or demand within ninety (90) days from the date the same is filed with the City Clerk shall be deemed to be a rejection thereof; provided, however, that the filing of any such claim with the City Clerk as above provided, or its presentation to the board, officer or employee authorized by this charter to incur or pay the expenditure or alleged indebtedness or liability represented thereby, shall constitute a compliance with the provisions of Section 376 as to the presentation of a claim prior to suit or action thereon.' 2 'Sec. 376. No suit shall be brought on any claim for money or damages against the City of Los Angeles, or any officer or board of the city, until a demand for the same has been presented, as herein provided, and rejected in whole or in part. If rejected in part, suit may be brought to recover the whole. Except in those cases where a shorter period of time is otherwise provided by law, all claims for damages against the city must be presented within six (6) months after the occurrence from which the damages arose, and all other claims or demands shall be presented within six (6) months after the last item of the account or claim accrued. Nor shall suit be brought against said city, or any board, or officer thereof, upon any claim or demand that has been in whole approved and audited as provided herein; provided, that nothing herein contained shall be construed so as to deprive the holder of any demand of his right to resort to writ of mandamus or other proceeding against the Council, or any board or officer of said city, to compel it or him to act upon such claim or demand, or to pay the same when so audited.'