Corder v. People ex rel. Smiley

Decision Date31 March 1930
Docket Number12175.
Citation87 Colo. 251,287 P. 85
PartiesCORDER et al. v. PEOPLE ex rel. SMILEY.
CourtColorado Supreme Court

Rehearing Denied April 21, 1930.

Error to District Court, Weld County; Robert G. Smith, Judge.

Action by the People of the state of Colorado, upon the relation of Richard Smiley, by his next friend H. B. Smiley, against Hubert L. Corder, the Maryland Casualty Company, and another. Judgment for plaintiff, and defendants named bring error.

Affirmed.

William R. Kelly and Clay R. Apple, both of Greeley, for plaintiffs in error.

Thomas A. Nixon, of Greeley, for defendant in error.

CAMPBELL J.

This action in behalf of Richard Smiley, a minor against Howell Hatfield, a deputy sheriff, and Hubert Corder sheriff of Weld county, and the Maryland Casualty Company, a corporation, official surety on the sheriff's bond, has for its object the recovery of a judgment against the defendants for personal injury inflicted on the plaintiff Smiley by Deputy Sheriff Hatfield, who, while acting as such deputy sheriff and while engaged in the performance of his official duties as deputy sheriff and under color of his office, unlawfully and negligently made an assault on Smiley by 'shooting him with a bullet fired from a revolver' in the hands of Hatfield, causing serious personal injury to plaintiff.

Upon issues of fact joined by Hatfield's answer in his own behalf, and the separate joint answer of Sheriff Corder and his surety, the jury impaneled to try the cause returned a verdict for the plaintiff in the sum of $1,163.50 against all three defendants, upon which verdict the court rendered judgment for the plaintiff over the objection of the defendants. Hatfield, the deputy sheriff, has taken no steps to have this judgment against him reviewed, but the sheriff and his official surety are here with their writ of error to have it set aside.

Apparently all three defendants assumed that the complaint on its face states facts that constitute a good cause of action against them; for neither of them has attacked the initial pleading either by motion, demurrer, or otherwise for any defect therein, either of form or substance, and they make no such attack on this review. We are in accord with the defendants that the complaint is good on its face.

The joint answer of the sheriff and his surety, while admitting that Hatfield was a special deputy sheriff, denies that in the act of firing his recover he was acting officially as such. The separate answer of Hatfield in effect is, as claimed in the brief of his counsel, that in firing his revolver and wounding the plaintiff, he was acting in his personal, individual capacity, and not in his official capacity as deputy sheriff.

The principal and important question to be determined is whether the defendant Hatfield, in firing his revolver and wounding the plaintiff Smiley, was acting officially as a deputy sheriff or merely in his private or individual capacity. It seems from this record that Hatfield had heretofore been tried and convicted in a criminal action for this shooting of Smiley. In his testimony in the action now under review Hatfield testified that he was not purporting to act as a deputy sheriff when he fired the shot that wounded Smiley. Yet in his cross-examination he was compelled to admit, and virtually did admit, that in the trial of the criminal action he defended the same upon the ground, in part at least, that when he fired the shot he was acting in the capacity of a deputy sheriff in an attempt to prevent a disturbance of the peace and quiet of the community. A careful examination of the record discloses, we think, that upon this issue as to the capacity in which Hatfield was acting when he shot Smiley, while in some respects conflicting, Hatfield's own testimony, while contradictory, was enough upon which to go to the jury upon this issue, and that the jury was justified in finding from the evidence as a whole that Hatfield was attempting to act and did act in his official capacity and under color of his office in attempting to quell a manifest disturbance of the peace.

In view, however, of the able and ingenious brief of defendant's counsel, we shall consider some of the specific objections relied upon by them for reversal, after first summarizing the material testimony in the case. Hatfield owned and operated a store in the town of Pierce, Weld county. He also farmed some lands near by. Sheriff Corder had appointed him as deputy sheriff, the only restriction imposed being that he was not given power to serve papers without orders from the sheriff himself. On the evening of October 31, 1926, which was Halloween, preceding All Saints' Day, plaintiff Smiley and six or seven other high school boys in the town of Pierce got together about 7:30 or 8 o'clock and began or entered upon a continuous series of Holloween pranks often engaged in by young boys at such times, and continued them until about 9:30 o'clock. In chronological order we recite some of these boyish pranks. One of the boys rode a horse on the sidewalk of the town in front of defendant Hatfield's store three different times, and on the last ride Hatfield came out of his store, pursued the boy who had been riding on the sidewalk, and shot at or toward him. Shortly thereafter the boys 'joked' Hatfield about his revolver, calling it a popgun, saying that it would not shoot, and Hatfield retorted that he would show them if they would step out into the street. This was about 8:30 o'clock.

Soon thereafter the boys got together across the street and then went to a blacksmith shop, where they picked up some old wagon wheels, taking them to a beet dump near by and pushed the wheels over the dump and returned to the blacksmith shop. Some time thereafter they started to take a tank wagon they found into the street, and some of the boys were pushing and some pulling. They proceeded down Lincoln Highway with this wagon at about 9 or 9:30 o'clock at night, and after they had gone about a block, Hatfield started to run after them. He testified that the boys were 'tearing up stuff,' monkeying around, and making a racket. When the boys saw him approaching, they started to run, and Hatfield ran after them, fell down in some weeds, got up and called to the boys to stop, and when they did not comply with his command, he fired two shots, the first of which struck Smiley and caused serious injuries to him.

Smiley was taken to the 'teacherage' near by, a wound was found on him, and a physician was called. In a few minutes, Hatfield came to the 'teacherage' and there engaged in an altercation with one or more of the boys who were there and said, among other things, that he would arrest them if they were not quiet and did not stop crying.

The defendant Hatfield, according to the testimony of some of the witnesses, was watching and following the boys during practically the entire evening, and at some time during this oversight he declared that he was a deputy sheriff and was going to protect property in the town and was assigned to do so and was going to do it, and again mentioned that he was a deputy sheriff. During this evening he had also deputized a man named...

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5 cases
  • Trimble v. City and County of Denver
    • United States
    • Colorado Supreme Court
    • March 11, 1985
    ...manager of Health and Hospitals may normally do, and were taken while acting under color of that authority. See Corder v. People ex rel. Smiley, 87 Colo. 251, 287 P. 85 (1930). If the actions were within Kauvar's authority, we have no doubt that they were discretionary, not ministerial. The......
  • Grayson v. Linton
    • United States
    • Idaho Supreme Court
    • April 24, 1942
    ... ... Fidelity and Doposit Company, 44 ... Idaho 609; 260 P. 152; State ex rel Weltmer v. Moore, ... (Kans.) 20 P.2d 518; Pitman v. State, (Okla.) 158 ... 216, 164 P. 941; State v ... Llewellyn, 23 N.M. 43, 167 P. 414; Corder v ... People, 87 Colo. 251, 287 P. 85; Abbott v ... Cooper, 218 Cal ... ...
  • Antonopoulos v. Town of Telluride
    • United States
    • Colorado Supreme Court
    • February 10, 1975
    ...that the liability of a municipality's police has traditionally existed despite the doctrine of sovereign immunity. Corder v. People, 87 Colo. 251, 287 P. 85 (1930); Cf. Johnsen v. Baugher, 92 Colo. 588, 22 P.2d 855 (1933). Hence this court's prospective abrogation of the doctrine in Evans ......
  • Bailey v. Clausen
    • United States
    • Colorado Supreme Court
    • December 20, 1976
    ...In Colorado, an official act basically is one done in the actor's official capacity And under color of his office. Corder v. People, 87 Colo. 251, 287 P. 85 (1930). To the above skeletal definition the Tenth Circuit Court of Appeals, in Whitney v. United States, 99 F.2d 327 (10th Cir. 1938)......
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