Chaudoin v. Fuller, 5027

• Decision Date: 14 April 1948
• Docket Number: 5027
• Citation: 67 Ariz. 144,192 P.2d 243
• Parties: CHAUDOIN et al. v. FULLER
• Court: Arizona Supreme Court

192 P.2d 243

67 Ariz. 144

CHAUDOIN et al. v. FULLER

No. 5027

Supreme Court of Arizona

April 14, 1948

As Modified on Denial of Rehearing May 6, 1948.

Appeal from Superior Court, Greenlee County; Henry C. Kelly, Judge.

Affirmed.

Kramer Morrison, Roche & Perry, of Phoenix, Porter Murry, of Clifton, and Conner & Jones, of Tucson, for appellants.

H Earle Rogge, of Clifton, Ralph Bilby, Harold C. Warnock, and Knapp, Boyle, Bilby & Thompson, all of Tucson, for appellee.

Stanford Chief Justice. La Prade and Udall, JJ., concur.

OPINION

Stanford, Chief Justice.

We are designating the parties to this action as they were in the trial court, the appellee as plaintiff, and appellants as defendants.

On April 21, 1945, at Morenci, Arizona, while plaintiff was in the bar and restaurant of the Longfellow Inn at approximately 9 P.M., defendant Bass, in arresting plaintiff for disturbing the peace, fired a teargas gun, from a distance of approximately three feet, into the face of plaintiff. At the time of the arrest defendant Bass, who was wearing the badge of a deputy sheriff, was one of the regularly appointed deputies of his codefendant Joe Chaudoin, then Sheriff of Greenlee County in which the town of Morenci is located.

The testimony shows that as he made the arrest he stated to plaintiff: "You are under arrest. I am a deputy sheriff." The testimony further shows that the gas gun was issued to him by the sheriff's office, and that he had carried the same for two or three years prior to the time of arrest, and had received instructions about the use of same under the supervision of the sheriff's office.

When the gas struck plaintiff's eyes he became helpless and defendant Bass pulled him out into the hall, and, without rendering any aid to plaintiff, placed him in the county lockup at Morenci. Defendant Bass immediately thereafter left Morenci for several days, and the duty of caring for plaintiff devolved on other personnel of the sheriff's office.

The tear gas having blinded the plaintiff, and having no facilities in jail, he attempted to care for himself by swabbing his eyes with a dirty sock moistened from the water in the toilet bowl. The next morning he was taken by Deputy Sheriff Chapman to the hospital.

Other facts will be related as we proceed with the case.

This action was brought by the plaintiff against the defendants herein asking for damages in the sum of $ 50,000 against the sheriff and his deputy, and for judgment against the defendant The Hartford Accident & Indemnity Company, surety on the bond of the sheriff, in the sum of $ 10,000.

The case was tried in November, 1946, before the court without a jury. Judgment was rendered on behalf of plaintiff against each of the defendants in the sum of $ 10,000. From the judgment so rendered the case was brought to this court on appeal.

The first assignment of error made by defendants Chaudoin and the Indemnity Company is that in the findings of fact of the court no liability attached to the defendants Chaudoin and the Indemnity Company for the reason that the court did not find that the defendant Bass, as deputy sheriff, was making a lawful arrest of the plaintiff, but on the contrary found that the plaintiff Fuller was not committing or attempting to commit any aggressive act at said time, nor attempting to commit or threatening to commit bodily harm on defendant Bass.

The second assignment of error of Chaudoin and the Indemnity Company is that it was in the Longfellow Inn at Morenci, Arizona, where Bass was a constable, that the occurrence took place; that Bass had no warrant for the arrest of Fuller and had not been directed or instructed by the sheriff to arrest Fuller; that neither the sheriff, nor the sheriff's office, had any knowledge or notice of the occurrence before it happened; that Bass acted as a constable on his own judgment without a warrant in attempting to arrest the plaintiff, and had no option to choose his official capacity in making the arrest.

Defendant Bass for his assignments of error adopts the two assignments made by the other two defendants, and for himself submits Assignments of Error Nos. 3 and 4. Assignment No. 3 is:

"* * * that the findings of fact are not supported by the pleadings in this case in that this defendant is sued with the defendants, Joe Chaudoin and Hartford Accident and Indemnity Company, for acts alleged to have been committed by this appellant as deputy sheriff, whereas the findings of fact are that this defendant was not acting within the scope of his authority as deputy sheriff and in legal effect that he was acting as a private individual. * * *"

Assignment No. 4 is:

"* * * that if the findings of fact are to be construed as finding that this appellant acted as a peace officer at the time and place in question, he was on the undisputed evidence as a matter of law acting as a constable and not as a deputy sheriff; that the plaintiff in this case has not attempted to sue this appellant, or the surety on his bond, as constable and has founded his case on the alleged liability of this appellant as the deputy sheriff of said county; * * *"

Section 12-203, A.C.A.1939, under the heading of "Officer liable for acts of deputy -- Bond of deputy," reads:

"Every officer is liable on his official bond for any official negligence or misconduct on the part of any of his deputies, clerks or assistants, and may require an official bond from a deputy appointed by him, in an amount not greater than, and conditioned as, that required of the principal officer. The bonds of deputies, clerks or employees, unless otherwise provided by law, shall be approved by the appointing power."

We also quote a part of another section of our code which is pertinent in the instant case, the same being taken from Section 44-124, A.C.A.1939, under the heading of "Arrest by officer without warrant -- When lawful":

"A peace officer may, without a warrant, arrest a person:

"(a) When the person to be arrested has committed a felony or misdemeanor in his presence. In the case of such arrest for a misdemeanor, the arrest shall be made immediately or on fresh pursuit."

The theory of the case in the superior court taken by defendants Joe Chaudoin and The Hartford Accident & Indemnity Co. was in keeping with their pleadings, and on such pleadings they have alleged the following:

"* * * the plaintiff herein resisted arrest and threatened and attempted to do great bodily harm to the arresting officer and that the means taken by said officer, to accomplish said arrest and to protect himself from such bodily harm, were necessary and reasonable and proper in the premises and under the circumstances and conditions then existing or apparent."

Following this pleading said defendants further alleged that Holland Bass made said arrest in his capacity as constable and not as deputy sheriff. The defense testimony in the trial court supported the allegations of the answer, but now the defense that the assault was justified has been abandoned.

We quote from the findings of fact made by the trial court:

"3. That at said time and place and in attempting said arrest the defendant Holland Bass was acting in the capacity of a deputy sheriff to the said defendant Joe Chaudoin.

"4. That at said time and place the plaintiff Gerald B. Fuller was not resisting any lawful arrest by the defendant Holland Bass, nor was he at said time and place committing or attempting to commit any aggressive act, or attempting or threatening to commit bodily harm upon said defendant."

Defendants' interpretation of finding No. 4 of the trial court is expressed in their brief as follows:

"In the case at bar, the facts as found by the trial court are that there was no offense committed in the presence of the deputy, Bass, and that there was no reason for his arresting Fuller. Consequently Bass did not have any authority for making the arrest and his act was not an official act as set forth by our statutes. * * *"

And the defendants offer in support of their view the cases of Miles v. Wright, 22 Ariz. 73, 194 P. 88, 12 A.L.R. 970; Weidler v. Arizona Power Co., 39 Ariz. 390, 7 P.2d 241; Truog v. American Bonding Co. of Baltimore, 56 Ariz. 269, 107 P.2d 203.

Defendants quote from Miles v. Wright, supra [22 Ariz. 73, 194 P. 92], the following:

"The law being that a peace officer may not make an arrest for a misdemeanor committed or attempted out of his presence without a warrant, the complaint doubtless should have been more definite and certain in stating the grade of the offense with which plaintiff was charged at the time he arrested her. If he arrested her for a misdemeanor, it would not be an official act for which his principal would be liable, * * *"

Following this quotation the defendants Chaudoin and the Indemnity Company state:

"* * * Clearly, then, the facts in instant case show that since Bass did not make a lawful...