Filarski v. Covey

PLUMMER, J.

This action was brought by the plaintiff against the defendant C. H. Covey, as deputy sheriff, W. J. Hime, as sheriff of the county of Kings, state of California, and Maryland .Casualty Company, a corpora

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tion, as surety on the official. bond of W. J. Hime, as sheriff, for the purpose of recovering damages, in the sum of ten thousand dollars for the death of a minor son of the plaintiff, alleged to have been caused by the negligence of C. H. Covey, as deputy sheriff. The trial court sustained the demurrer of the defendants Hime and Maryland Casualty Company to plaintiff’s amended complaint without leave to amend and sustained the demurrer of the defendant C. H. Covey to said complaint, with leave to plaintiff to amend within ten days, which plaintiff declined to do. Judgment was entered in favor of the defendants and from this judgment the plaintiff appeals.

The second amended complaint, after setting forth certain preliminary matters, alleged in paragraphs VI and VIII thereof, as follows:

VI. “That on the 8th day of October, 1923, defendant C. H. Covey, while acting in his official capacity as deputy sheriff, had in his possession a certain automobile which was then under his care, management and direction, and which he was driving north on the public highway at a place about three miles south of the southeast corner of the city limits of the City of Hanford in said County of Kings, to-wit, at the intersection of said public highway and a private road running east therefrom.”

VIII. “That on the said 8th day of October, 1923, defendant W. J. Hime, as sheriff of said County of Kings, had in his custody in the county jail of said County of Kings, a person whom he had arrested for committing a public offense who was then and there awaiting his preliminary hearing before, and to be admitted to bail by, a magistrate; that on said day defendant C. H. Covey, while acting in the line of his official duties, went out to call such magistrate, and after having called such magistrate he (defendant C. H. Covey) proceeded to return to take said person so held in custody before said magistrate for examination, to-wit, to give him a preliminary hearing and to admit him to bail, and while thus returning as aforesaid, said defendant C. H. Cóvey so wrongfully, carelessly and negligently, and without due regard for the safety and convenience of others upon said public highway, managed and drove said automobile that the same then and there came into violent collision with said bicycle managed