St. John v. Reid

Defendants Reid and Smith appeal from a judgment entered against them upon the return of a jury’s verdict awarding plaintiff damages for personal injuries suffered when he was struck by buckshot discharged from a shotgun carried by defendant Reid while acting as a special police officer guarding the funds of defendant Smith.

Defendant Smith operated ten markets in and about the city of Los Angeles and employed one Granholm as messenger to collect various sums of money from markets and deposit them at a bank. Having previously sustained a loss by robbery, Smith brought about the appointment of Reid as a special police officer and paid Reid for his services. Reid’s sole duty was to accompany Granholm in an automobile owned by Smith and protect Granholm from robbery until the money was deposited in the bank. He wore a policeman’s uniform with a badge of the type prescribed by the city for special policemen. He carried a sawed-off shotgun loaded with buckshot. When Granholm’s automobile arrived at the bank Granholm left the automobile by the front door. Reid started to leave by the rear door and while he was in the act of getting out of the car the shotgun

The jury was instructed that Smith was responsible for the negligence of Reid and it is now contended that this instruction was erroneous. There is a sharp conflict of authority on the question of the application of the doctrine of respondeat superior to eases in which special policemen have been compensated by private citizens. In California the decisions have clearly held that the private citizen is not responsible for the acts of the special officer committed in the discharge of his police duties. (Maggi v. Pompa, 105 Cal. App. 496 [ 287 Pac. 982 ]; Redgate v. Southern Pacific Co., 24 Cal. App. 573 [ 141 Pac. 1191 ]; Squires v. Southern Pacific Co., 42 Cal. App. 459 [ 183 Pac. 695 ].) In Maggi v. Pompa, supra, the question was decided adversely to the contention made by plaintiff. In that case one Cesena was appointed a special police officer by the police commissioners of San Francisco. The defendant Peter Pompa was conducting a special patrol and collected compensation from the property owners of certain territory which was patrolled. He paid a monthly salary to Cesena. While patrolling the beat assigned to him Cesena attempted to make an arrest for a misdemeanor and in doing so unlawfully discharged his gun, thereby injuring a bystander who sued Pompa, claiming that Pompa was responsible for the conduct of Cesena. In upholding the contention of the defendant the court said: “In harmony with the rule of the Redgate case

In the case before us the special officer was performing no duty except that pertaining to his work as a police officer. The only appreciable difference between the facts of this case and that of the Maggi v. Pompa ease is that the defendant in the last-mentioned ease was in the business of supplying police protection, a circumstance which did not tend to lessen his liability. Reid performed no services in and about the business of Smith as salesman or in any capacity other than that of a policeman. Smith did not undertake to direct or control Reid in the discharge of his police duties. The only control which Smith exercised over Reid was to direct Reid as to the places to which he should accompany the messenger. In Maggi v. Pompa, supra, it was held in the following language that such control was not sufficient to make the defendant responsible for the conduct of the special officer: “As the cause must go back for a new trial we should add that it is not sufficient, as contended by respondent, that the appellant paid the monthly wages to Cesena or that he gave general directions to Cesena as to the streets which he was to patrol and the general conduct of his duties, these directions being nothing more than directions to follow the rules and regulations of the board of police commissioners. ’ ’

Plaintiff points to the fact that Reid was not in the act of preventing the commission of a crime at the time the gun was negligently discharged and argues that for this reason he was not in the performance of his police duties.

The motion for a nonsuit should have been granted. The judgment is affirmed as to defendant Reid and reversed as to defendant Smith, with directions to the superior court to enter judgment in favor of defendant Smith.

McComb, J., pro tem., and Grail, P. J., concurred.

A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on December 7, 1936. Seawell, J., voted for a hearing.