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Harding v. City of Hawthorne

114 Cal. App. 580 Court Second Appellate District, Division One. Decision date 1931-06-04 Docket Civ. No. 6562 English

Delivered by BISHOP, J., pro tem.

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p. 580
[Civ. No. 6562.
Second Appellate District, Division One.
June 4, 1931.]
WINNIFRED CLARE HARDING et al., Appellants, v. CITY OF HAWTHORNE (a Municipal Corporation), Respondent.
Elton W. Stanley and Richard A. Dunnigan for Appellants.
Louis Greenbaum, City Attorney, for Respondent.

In this action plaintiffs seek to recover damages from the City of Hawthorne because of the

p. 581
negligent operation of a motorcycle by a police officer of the city while acting within the course and scope of his employment. It his opening statement before the jury plaintiff spoke of the operator of the motorcycle as a “motorcycle policeman”. A motion for "judgment on the pleadings was thereupon interposed and after some discussion plaintiff requested and was granted leave to amend his complaint by substituting the characterization “police officer” for the word “employee” as applied to the driver of the offending motorcycle in the complaint as drawn. The motion for judgment on the pleadings was renewed by the defendant city as to itself alone, and granted, judgment following. The question thus submitted to the trial court, and now to us, is whether or not a municipality is liable for injuries occasioned by the careless and negligent operation of a motorcycle by a police officer on duty. It is our opinion that the negative answer given by the trial court is the correct one.

“It is thoroughly settled in this state that in the absence of a statute imposing the liability, a municipality is not liable on account of acts such as those here complained of, unless the negligence was in the matter of the exercise of functions private and proprietary in their nature as distinguished from functions purely governmental in nature.” [Kellar v. City of Los Angeles, (1919) 179 Cal. 605 , 607 [ 178 Pac. 505 ], See, also, Manning v. City of Pasadena, (1922) 58 Cal. App. 666 [ 209 Pac. 253 ]; Davie v. Board of Regents, (1924) 66 Cal. App. 693 [ 227 Pac. 243 ].) The following quotation from Chafor v. City of Long Beach, (1917) 174 Cal. 478 [Ann. Cas. 1918D, 106, L. R. A. 1917E, 685, 163 Pac. 670 ], appears in Kellar v. City of Los Angeles, supra, at page 608: “Nor is it difficult to set forth the definition of governmental functions as applied to a city. Under the' theory of the common law, that the municipality is protected from liability only while exercising the delegated functions of sovereignty, the governmental powers of a city are those pertaining to the making and enforcing of police regulations, to prevent crime, to preserve the public health, to prevent fires, the earing for the poor, and the education of the young.” Applying this principle it has been held that the negligent operation or maintenance of fire-fighting apparatus creates no liability on the city. (Howard v. San Francisco, (1875) 51 Cal. 52 ; nor on the

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state Denning v. State, (1899) 123 Cal. 316 [ 55 Pac. 1000 ].) Similarly cities are not liable for the negligent driving of motor vehicles in the service of the police department. (Engel v. Milwaukee, (1914) 158 Wis. 480 [ 149 N. W. 141 ] ; Stater v. Joplin, (1915) 189 Mo. App. 383 [ 176 S. W. 241 ] ; Aldrich v. Youngstown, (1922) 106 Ohio St. 342 [ 140 N. E. 164 , 27 A. L. R. 1497 ]; Hansen v. Berry, 54 N. D. 487 , (1926) [ 47 A. L. R. 816 , 209 N. W. 1002 ]. See, also, 19 R. C. L. 1119.)

Appellant suggests that there has been a modification of this established principle by legislation effective in September, 1925, the time involved in this case. In substantiation of her suggestion she points to sections 132 and 144 of the California Vehicle Act as enacted in 1923. They read as follows:

“Sec. 132. Police and fire department vehicles shall have the right of way over all other vehicles but must be operated with due regard for the safety of all persons using the public highway. This provision shall not protect the driver of any such vehicle or his employer or principal from the consequence of the arbitrary exercise of such right of way.
“Sec. 144. The provisions of this act applicable to drivers of vehicles upon the public highways shall apply to the drivers of all vehicles operated by the state or any political subdivision thereof, or of any incorporated city, subject to such specific exceptions as are set forth in this act.”

We see in these provisions no attempt of the legislature to create a liability on the part of cities for the negligent operation of fire department or police vehicles. The most that can be said is that in the second sentence of section 132 the liability of the city as a principal is assumed. The case of Denning v. State, supra, presented a stronger case for recovery than this. The statute there under consideration (Stats. 1893, p. 57) provided: “All persons who have, or shall hereafter have, claims on contract or for negligence against the state . . . are hereby authorized . . . to bring suit thereon against the state ...” Plaintiff had a claim for negligence, and claimed that the intent of the legislature in passing the statute was to make the state liable. In answer the Supreme Court said: “This statute has been considered by this court in at least two cases,

p. 583
arising under different facts, and in both, it was held that said statute did not create any liability or cause of action against the state where none existed before, but merely gave an additional remedy to enforce such liability as would have existed if the statute had not been enacted. (Chapman v. State, 104 Cal. 690 [ 43 Am. St. Rep. 158 , 38 Pac. 457 ]; Melvin v. State, 121 Cal. 16 [ 53 Pac. 416 ].) Respondent’s first point cannot, therefore, be sustained.”

Furthermore, if the legislature intended to create a liability on the part of the cities by adopting these sections in 1923, its attempt is futile because the title of the act (Stats. 1923, p. 517) contains no reference to any such subject matter, nor did the title of the Vehicle Act (Stats. 1915, p. 397) to section 20, subsection (m) of which the provisions now found in section 132 may be traced. (Brunson v. Santa Monica, (1915) 27 Cal. App. 89 [ 148 Pac. 950 ].) We must conclude that the freedom from liability which the defendant enjoys under the common-law rule has not been destroyed by any statutory provisions suggested or discovered.

The judgment is affirmed.

Houser, Acting P. J., and York, J., concurred.

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