Henry v. City of Los Angeles

McCOMB, J.

Plaintiffs appeal from a judgment in favor of defendants predicated upon the sustaining of their demurrers without leave to amend in an action to recover damages for wrongful death.

Fads:

Plaintiffs brought an action for wrongful death of their son, shot by a Los Angeles reserve police officer while on patrol duty, against the city of Los Angeles, Chief Parker

[604]

as Chief of the Los Angeles Police from August 9, 1950, to the date of the filing of the complaint, and C. B. Horrell as Chief of Police from 1940 to June, 1949. A claim under the provisions of section 1981, Government Code, was served upon and filed with the clerk of the city of Los Angeles but not presented to nor filed with any other person.

General demurrers having been sustained without leave to amend and a judgment entered pursuant thereto the present appeal has ensued.

Questions:

First:

Was the demurrer properly sustained as to the defendant municipal corporation?

Yes.

These pertinent rules are here controlling:

1. A municipal corporation is not liable in the absence of a special statute rendering it liable (there is no such statute applicable to the facts of the instant case), for the torts of its agents in the performance of governmental as distinguished from proprietary functions.

(Norton

v.

Hoffman,

34 Cal.App.2d 189, 194 [1] [93 P.2d 250];

Wood

v.

Cox,

10 Cal.App.2d 652, 653 [1] [52 P.2d 565].)

2. The maintenance and operation of a police department is a governmental function.