Osborne v. Shaeffer

California Court of Appeal Jun 24, 1957 No. Civ. No. 17285Published

Before: Lernhart

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Holding. The court held that the complaint sufficiently alleged that the sheriff's acts were performed in an official capacity, and that the trial court abused its discretion by sustaining the demurrer without leave to amend.

Issues

Whether the statute of limitations for an action against a sheriff for negligent supervision of a jail is one year or two years.
Whether the complaint sufficiently alleged that the sheriff's acts were performed in an official capacity.
Whether the trial court abused its discretion in denying leave to amend the complaint.

Disposition. reversed

Quotations verified verbatim against the opinion

“the first amended complaint does, however imperfectly, state facts sufficient to show that the acts complained of were official in character and in virtue of the office.”

“the judgment is reversed, with directions to the trial court to grant leave to plaintiff to amend his amended complaint.”

LERNHART, J. pro tem.* This is an appeal from a judgment entered in the Superior Court of Santa Clara County. The complaint in this action was filed December 6, 1955. A first amended complaint was filed February 27,1956. The defendants demurred and their demurrers were sustained without leave to amend. Judgment was entered thereon.

Appellant, Oscar K. Osborne, sustained injuries when he was assaulted in the Santa Clara County jail on November 27, 1954. The complaint alleges that he was assaulted by Pat Shaeffer, a trusty in charge of appellant. Howard Horn-buckle was sheriff of said county at said time.

On February 24, 1955, within 90 days of the assault, appellant filed a claim for his injuries with Howard Horn-buckle. The same claim was filed with G. E. Tarleton, County Clerk of Santa Clara County. On July 5, 1955, the board of supervisors denied the claim.

A complaint based on this claim was filed on December 6, 1955. The defendants in that action were Pat Shaeffer; Howard Hornbuckle, ex-sheriff of the county of Santa Clara; the county of Santa Clara; The Aetna Casualty and Surety Company; Ohio Casualty Insurance Company; and several Does. The complaint was amended by a first amended complaint, filed February 27, 1956. The defendants were only the former sheriff and his bonding company.

Both defendants filed a demurrer to the amended complaint on the ground that the action was barred by section 340, subdivision 3, Code of Civil Procedure.

The court sustained the demurrers without leave to amend and entered judgment thereon. This appeal is taken from that judgment.

Appellant’s first contention is that under section 339, subdivision 2, of the Code of Civil Procedure the statute of limitations for the commencement of an action of this nature is two years. The section provides:

Section 339 (two years)

“2. An action against a sheriff, coroner, or constable upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty including the nonpayment of money collected upon an execution. But this subdivision does not apply to an action for an escape.”

Appellant argues that Code of Civil Procedure, section [58340]

Osborne v. Shaeffer

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