Bowman v. Hayward, 7918

• Decision Date: 16 November 1953
• Docket Number: No. 7918,7918
• Citation: 1 Utah 2d 131,262 P.2d 957
• Parties: d 131 BOWMAN, v. HAYWARD et al.
• Court: Utah Supreme Court

Page 957

262 P.2d 957

1 Utah 2d 131

BOWMAN, v. HAYWARD et al.

No. 7918.

Supreme Court of Utah.

Nov. 16, 1953.

Moss & Hyde, Salt Lake City, for appellant.

Jones & Jones, Shirley P. Jones, Jr., Salt Lake City, for respondent.

WOLFE, Chief Justice.

Plaintiff, a former prisoner in the Salt Lake County Jail, commenced this action to recover damages in the sum of $10,000 for an alleged assault and battery committed upon his person while so incarcerated. On October 30, 1951, he was working as a trusty in the Salt Lake County Garage assigned to the duty of washing cars. At approximately 8:00 a. m. defendant Norman D. Hayward, a deputy sheriff, while on duty appeared in the garage and asked plaintiff to wash his private automobile. Plaintiff refused. Thereupon defendant Hayward became angry, used abusive language, threatened severe penalties if plaintiff did not wash the car as ordered, and left the garage to pursue his duties as deputy sheriff in the company of his colleague, Deputy Sheriff Rex J. Treseder. In the afternoon, defendant Hayward returned to the garage, discovered that plaintiff had not washed the car as ordered, and proceeded to attack and abuse the plaintiff who was pushed against automobiles, seized and dragged down an alley toward the office of the county jail. In the ensuing struggle, plaintiff, who is small in stature, partially freed himself, and then defendant Hayward struck the plaintiff with his fist, knocking him down. Momentarily plaintiff recovered from the blow and ran back into the garage. Defendant Hayward then obtained the assistance of Deputy Treseder who had been waiting in an official car close to the scene of the altercation. The two men followed plaintiff into the garage, and took him to the office of the county jail without further incident.

Chief Deputy Sheriff T. A. Callicott testified that he was on duty when plaintiff was brought into the office; and that defendant Hayward stated that he had experienced 'some difficulty' with the plaintiff 'about washing his car' and that plaintiff had refused 'to accompany him to the office of the jail.' Plaintiff refused to make any statement to Callicott concerning the incident, did not complain of his injuries, and until this action was commenced, he assured several officers that he was not injured; he 'just didn't want to be pushed around.'

We have expressed plaintiff's version of the assault and battery since the verdict was against defendant Hayward. Plaintiff's complaint demanded joint and several judgment against Hayward, George Beckstead as sheriff of Salt Lake County, Hartford Accident and Indemnity Company which wrote the official bond for Deputy Hayward, and the United States Fidelity and Guarantee Company which wrote the official bond for Sheriff Beckstead. The case was submitted to a jury upon instructions of the court and a verdict was returned in favor of the plaintiff and against defendant Hayward, not as deputy sheriff but in his private capacity, assessing damages in the sum of $150. No verdict was found against the other defendants.

Plaintiff and defendants George Beckstead, Hartford Accident and Indemnity Company and the United States Fidelity and Guarantee Company petitioned the court for a judgment on the verdict for attorney's fees as provided by Utah Code Anno.1953, 78-11-10. The lower court refused plaintiff's petition, awarded attorney's fees to defendant Beckstead in the sum of $25, and refused to award attorney's fees to the other defendants. The above statute provides in part that in an action against any sheriff, constable, or upon the bond of such officer, the 'prevailing party' shall recover from the losing party 'such sum as counsel fees as shall be allowed by the court', when such action 'arises out of, or in the course of the performance of his duty, or in any action upon the bond of any such officer'. A concomitant provision is found in the Utah Code Anno.1953, 52-1-8, which enables a person who is injured 'by official misconduct' of a public officer to maintain an action on the bond of such official. (Italics added.) Contrary to plaintiff's contention on cross-appeal, we believe these statutes evidence a legislative intent to allow attorney's fees to a successful plaintiff only when official misconduct is involved as distinguished from private acts. The lower court construed the statute in accordance with the foregoing; however, all the defendants as prevailing parties, excepting defendant Hayward, appeal on the ground that the lower court acted arbitrarily and capriciously in awarding only $25 attorney's fees to Beckstead and nothing to the indemnity companies. A discussion of defendants' contention is unnecessary since the case is resolved on the plaintiff's contention on cross-appeal that defendant Hayward was acting in his official capacity and that the lower court erred in its instructions to the jury after timely objection by plaintiff. We agree; consequently, plaintiff is entitled to a joint and several judgment against all the defendants, and to attorney's fees.

In the instructions to the jury, the lower court attempted to distinguish official acts from acts of a private trespasser by use of the following language:

'Instruction No. 2a. * * * If, however, your finding from the evidence is that Hayward committed the assault as alleged while acting out of and beyond the scope of his official capacity then I instruct you that he would alone be personally liable for such wrong doing and his bondsmen would not be liable for such conduct, nor likewise would George Beckstead or his bondsmen be liable for such conduct upon the part of Hayward. In other words, Hayward would then be acting as a private individual not within his official capacity, rendering only himself liable for such wrongful acts.

'Instruction No. 2(4). Before you can render a verdict against George Beckstead or his bondsmen, the United States Fidelity and Guarantee Company, a corporation, or Hayward's bondsmen, the Hartford Accident and Indemnity Company, a corporation, it is further necessary * * * that the plaintiff prove by a preponderance of the evidence that said Hayward, at the time of making the alleged assault and battery upon the plaintiff Bowman, was acting as a deputy sheriff in his official capacity under George Beckstead, his...