CHAPMAN v. THORNBURGH, Sheriff of Yuba County, 17 Cal. 87

Cope, J. delivered the opinion of the Court Baldwin, J. concurring. The action in this case is founded upon an alleged violation of the official duty of the defendant, in refusing to execute a writ of assistance with proper diligence. The case comes up on demurrer to the complaint; and the question is whether the facts stated are sufficient to constitute a cause of action. On the oral argument, we were strongly inclined to the opinion that the damages sought to be recovered were too remote, and that there was no legal connection between the wrong complained of and the injury sustained.

But upon further examination, we are satisfied that our impressions at that time were erroneous, and we think that upon proof of the facts alleged, the plaintiff will be entitled to recover. The defendant was required by the writ to proceed forthwith and deliver possession of the property to the plaintiff, and his duty was that of obedience, and he had no discretion whatever upon the subject. He cannot urge that prima facie the writ was executed with reasonable dispatch; it was his duty to execute it at the earliest practicable moment, and this he not only failed, but refused to do.

Upon receiving the writ, he accompanied the plaintiff to the premises for the purpose of putting him in possession, but for some reason, which is not stated, in opposition, however, to the wishes of the plaintiff, and against his earnest protestations, he declined to take any action in the matter. On a subsequent day he proceeded to execute the writ; but in the meantime the parties in possession had destroyed a number of valuable fixtures, and by their willful and malicious acts, had injured and damaged the premises in other respects.

If the defendant had properly discharged his duty, no opportunity for the commission of these acts would have been afforded, and we think that the effect of his conduct was to place him in a position of responsibility for the safety and security of the property. If the process had related to personal property instead of real estate, there is no doubt that the course which he pursued would have rendered him liable for the value of the property, and we do not see why the same principle which would have determined his liability in that case, is not equally applicable in this.

The parties who committed the injury were the parties from whom the possession was to be taken, and it was the fault of the defendant that they were not removed, and the plaintiff placed in a position to protect the property against their acts. It was this fault that enabled these parties to commit the injury, and we are not aware that any principle of law is violated in making the defendant responsible for the consequences of a willful dereliction of duty, however remote or unexpected these consequences may have been.

We do not suppose that the defendant, when he took the responsibility of postponing the execution of the writ, anticipated danger to the property ; but his action in the matter was entirely voluntary, and he cannot escape liability on the plea that he was ignorant of the existence of this danger. If such a plea were admissible under the circumstances of this case, we do not see that the remote or consequential results of a wrong, however willful, could ever be redressed.

It must be borne in mind that the defendant was an officer called upon to discharge a duty enjoined by law, aud that possession of the property could only be obtained through him. He is presumed to have known what his duty was, and to have acted in willful violation of it, and there is nothing unjust or illegal in holding him for the damages to which the plaintiff has been subjected. We think the demurrer should have been overruled; and the judgment is therefore reversed, and the cause remanded.