Malone v. Howell

• Decision Date: 17 November 1939
• Citation: 140 Fla. 693,192 So. 224
• Parties: MALONE v. HOWELL.
• Court: Florida Supreme Court

192 So. 224

140 Fla. 693

MALONE v. HOWELL.

Florida Supreme Court

November 17, 1939

Rehearing Denied Dec. 7, 1939.

Error to Circuit Court, Putnam County; George William Jackson Judge.

Action by Ada Malone against R. C. Howell for the death of plaintiff's husband resulting when deputies appointed by the defendant undertook to arrest deceased. To review judgment for the defendant, plaintiff brings error.

Affirmed.

COUNSEL Singeltary & Cornwell, of Bradenton, and C. A Savage, of Ocala, for plaintiff in error.

J. V Walton, of Palatka, for defendant in error.

OPINION

BUFORD, Justice.

Writ of error brings for review judgment in favor of defendant in a suit in which the plaintiff sought to recover damages for the wrongful death of her husband.

Count Four amending the Third Amended Declaration is as follows:

'Fourth: Ada Malone, the plaintiff, by her attorneys, C. A. Savage, Jr., and John B. Singletary, sues the defendant, R. C. Howell, a resident of the County of Putnam of the State of Florida, for that on and prior to the 24th day of December 1931 the defendant, R. C. Howell, was the Sheriff of the said County of Putnam and that as such Sheriff sometime prior to the said 24th day of December A. D. 1931 in the County aforesaid did appoint W. G. Watkins, Lee Jernigan, G. W. Prater and E. H. McGaha each a deputy to act under him in and for said County with full power and authority usually conferred on deputies, and that such appointment was accepted by the said above named deputies and was in full force and effect and unrevoked on the said 24th day of December A. D. 1931 at the time of the negligence hereinafter alleged; that the said W. G. Watkins, Lee Jernigan, C. W. Prater and E. H. McGaha on the 24th day of December A. D. 1931 acting as deputies in and for said County under and by virtue of said appointment and in the exercise of the power and authority vested in them as deputies and in the regular performance of their respective duties as such deputies, did on the 24th day of December A. D. 1931, near the Town of Kinwood in said County and State, and at a place known as Lake Hewitt's Scrub lawfully undertake to arrest one John Malone, that at said time and place the said W. G. Watkins, Lee Jernigan, G. W. Prater and E. H. McGaha were each armed with a deadly weapon, to-wit: a fire-arm, commonly known as a gun or pistol, and the said W. G. Watkins, Lee Jernigan, G. W. Prater and E. H. McGaha, did then and there while undertaking to arrest the said John Malone as aforesaid, negligently and carelessly fire off and discharge said firearms, guns, or pistols at and in the direction of the said John Malone, he, the said John Malone, being at the time of such negligence and carelessness in range of said fire-arms, guns or pistols, and the said W. G. Watkins, Lee Jernigan, G. W. Prater and E. H. McGaha so negligently and carelessly discharged said fire arms at and in the direction of the said John Malone, that he, the said John Malone, was struck by one or more of the shot or bullets discharged from said fire-arms, inflicting a wound in and upon the body of the said John Malone, as a result of which said wound he, the said John Malone, then and there died.

'That at the time of the death of the said John Malone, as aforesaid, he was of the age of thirty-two (32) years, and was the lawful husband of the plaintiff.

'That because of the death of the said John Malone, as aforesaid, plaintiff was and is damaged to the extent of the pecuniary value of the life of the deceased to her, as her husband; and also suffered the loss of the comfort, protection and society of her husband, of the value of $49,700.00 and was also damaged to the extent of the reasonable funeral expenses incurred by the plaintiff in burying her deceased husband in the total amount of $300.00.

'Wherefore, the plaintiff brings this suit and claims $50,000.00 damages.'

We quote this Count of the declaration because the allegations made in this Count make the case upon which the plaintiff was required to recover, if at all.

Admitting that every allegation of such Count was true, except the allegation that the named deputies 'did on the 24th day of December A. D. 1931 near the Town of Kinwood in said County and State, and at a place known as Lake Hewitt's Scrub lawfully undertake to arrest one John Malone', a case showing liability of the Sheriff would not be presented. That (the last above quoted) allegation was contained in each and every count of the several declarations filed and in the amendment sought to be filed, the filing of which was denied by the Court.

This was a necessary and basically material allegation and without proof to support it, the plaintiff could not recover against the Sheriff. See Swenson v. Cahoon, 111 Fla. 788, 152 So. 203.

Plaintiff in error has presented several questions for our consideration, but as the disposition of the case rests first upon the answer to the question as to whether or not the deputies referred to did lawfully undertake to arrest one John Malone at the time and place alleged in the declaration, other questions need not be discussed. The record shows that the alleged deputies had located a liquor still which was evidently being used for the purpose of manufacturing moonshine whisky. It shows that one Walker was suspected of being the owner and operator of the still. The still was located some four miles from any residence and was located in a small clearing situated in an oak scrub. There were trails leading to it. The still was set up and there were some barrels close by containing what is known as mash. Three deputies with another, one McGaha, who may or may not have been a deputy os far as consideration of this matter is concerned, went in the night time to the location of the still and concealed themselves in the bushes near by. Sometime during the following day when these parties remained concealed in the near-by bushes, one John Malone and a negro, probably Charlie Jackson, approached the still on one of the trails leading thereto. Malone was in front and as he stepped into the clearing one of the deputies called to him. He immediately turned and attempted to flee when he was shot by one or more of those laying in wait and was killed. The deputies had no warrant for the arrest of Malone. He had committed no crime, either felony or misdemeanor, in the presence of the officers who attempted to accomplish his arrest of which they, or either of them, had any evidence at that time. It is true that it developed later that Malone intended to examine the mash, but so far as what the deputies saw or heard is concerned he had done nothing in their presence which constituted an unlawful act or the evidence of which would have been sufficient to convict him of any unlawful act. If they had arrested Malone and he had said nothing incriminating himself, there was no fact established by his conduct which would show him to be connected with the still, to have any interest in it or to have done any unlawful act. McGaha testified that he thought the still belonged to a man by the name of Walker and that when Malone was shot he called him by the name of Walker and Malone told him that he was not Walker.

It is not unlawful for a person to approach a contraband liquor still and, for all those who were laying in wait knew or could ascertain from the actions and conduct of Malone in their presence, he was as innocent of having anything to do with the operation of the distilling apparatus as they themselves were.

So it is that there was a total lack of proof of any overt act upon the part of Malone which would authorize his arrest without warrant upon the theory that he had committed a crime in the presence of the officers.

An arrest without a warrant for a misdemeanor, to be lawful, can only be made where the offense was committed in the presence of the officer--that is it must have been within the presence or view of the officer in such a manner as to be actually detected by the officer by the use of one of his senses. See Borwn v. Wallis, Tex.Civ.App., 101 S.W. 1068, 1070, wherein the court said: 'It is not sufficient that the officer is within seeing or hearing distance of the criminal act and thereby obtains knowledge of the fact, but he must also be able to 'detect it by sight or hearing as the act of the accused.” See also People v. Johnson, 86 Mich. 175, 48 N.W. 870, 13 L.R.A. 163, 24 Am.St.Rep. 116; Baldwin v. State, 175 Miss. 316, 167 So. 61; Kennington-Saenger Inc. v. Wicks, 168 Miss. 566, 151 So. 549.

It is the general rule that sheriffs and other officers performing similar duties are civilly liable but not criminally for the acts and omissions of their deputies when performed within the scope of their legal authority and by virtue of their office. See Swenson v. Cahoon, supra; also annotation in 1 A.L.R. page 236, subdivision LX. But it is undoubtedly true that when a sheriff appoints deputies he confers on them...