Rubinow v. County of San Bernardino

SHEPARD, J.

This is an appeal from a judgment of dismissal of plaintiffs’ complaint following the sustaining of a demurrer and the additional order at plaintiffs’ request that it be “without leave to amend.’’

In general substance the complaint alleges that March 28, 1956, Wynn Estelle Rubinow was killed in an automobile accident on Highway 66 near Newberry in San Bernardino County; that the accident was caused by the careless, negli

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gent, reckless, erratic and unlawful driving of one George Moore, Jr., due to said George Moore’s drunken and intoxicated condition; “that at said time and place, said Ford automobile operated by the said George Moore, Jr., as aforesaid, was being operated in the presence of and was being followed and observed by said defendant, Ernest J. Rowland, Deputy Sheriff of said County of San Bernardino, and that said Ernest J. Rowland failed and neglected to faithfully perform his duties, to stop and prevent the violation of the law being committed in his presence by the said George Moore, Jr.”; that as a proximate result of said defendant’s negligence the automobile of George Moore, Jr., collided with that of plaintiffs’ deceased, causing her death; and that plaintiffs are the surviving husband and minor child of said deceased.

The third cause of action under similar allegations alleges severe injury to Sydney G. Rubinow, Jr., and a fifth cause of action under similar allegations alleges severe injuries to Sydney Ruth Rubinow. The second, fourth and sixth causes of action were abandoned by plaintiffs and are not before us for consideration. Defendants demurred to all causes of action, both generally and specially. The special demurrer sets up a large number of defects in the wording of the complaint, among which are that the complaint does not show whether Rowland could see that the law was being violated by Moore, and whether Rowland could have stopped Moore’s alleged violations before the accident occurred.

Plaintiffs base their contention of liability on the statutory provisions relating to duties of officers, and on the contention that the failure or neglect of an officer to perform his duty with injury to others results in liability. They cite in support thereof Government Code, section 26600, that “The sheriff shall preserve peace, . . .”; section 26601, that “The sheriff shall arrest ... all persons who attempt to commit or who have committed a public offense”; Penal Code, section 836, that “A peace officer may . . . without a warrant, arrest a person: 1. For a public offense committed or attempted in his presence”; 5 California Jurisprudence 2d 155, to the effect that “. . . there is authority to the effect that where the circumstances require it, the right and duty exist for an officer to make such an arrest before the damage is done . . . ”; 21 California Jurisprudence 400, “it is the duty of the police (peace officer) to watch over the safety of citizens and to guard their person and property from destruction and injury”; Government Code, section 26685, “Whenever any