Crose v. John

• Decision Date: 09 May 1917
• Docket Number: 13706.
• Citation: 96 Wash. 216,164 P. 941
• Parties: CROSE v. JOHN et al.
• Court: Washington Supreme Court

164 P. 941

96 Wash. 216

CROSE v. JOHN et al.

No. 13706.

Supreme Court of Washington

May 9, 1917

Department 2. Appeal from Superior Court, Chelan County; Wm. A Grimshaw, Judge.

Action by Sylvia v. Crose against Tony John and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Burt J Williams and Williams & Corbin, all of Wenatchee, for appellants.

Arthur G. Morey and Ludington & Shiner, all of Wenatchee, for respondent.

MOUNT J.

This action was brought to recover damages for an injury received by the plaintiff from a gunshot wound inflicted upon her by the defendant Tony John. Upon a trial of the case, judgment was entered in favor of the plaintiff for $1,312.81. The defendants have appealed.

The facts are as follows: The defendant Charles Kenyon is the sheriff of Chelan county. The defendant Fidelity & Deposit Company is the surety upon his official bond. Some time prior to the 25th day of May, 1915, one Fred Trotto, an Italian had been convicted of a felony and sentenced for a term of years in the penitentiary of the state. He escaped from the penitentiary, and was supposed to be in hiding near Wenatchee, in Chelan county. The defendant Tony John, also an Italian, informed the sheriff of the fact that Trotto was in that vicinity. The sheriff thereupon gave to Tony John a deputy sheriff's star, with the words 'Deputy Sheriff' imprinted upon it, and also gave him a loaded revolver, and instructed Tony John to wear the star under the lapel of his vest, and show it when necessary. He told Tony John to 'go out and get him [Trotto]; * * * shoot him; bring him in dead.' Tony John took the star and the revolver, and went upon his mission to arrest the escaped prisoner, displaying the star upon the lapel of his coat. On the evening of May 25, 1915, Tony John engaged an inside room at the Del Mundo Hotel in the city of Wenatchee. At about 11:30 o'clock of that evening, the plaintiff, who occupied an adjoining room, and who had visited a lodge that evening, went to her room. While disrobing, and hanging up her clothing on the door between the two rooms, Tony John, without warning, fired two shots through the door connecting the two rooms. The first shot struck the plaintiff in the hip. She ran screaming into the hall, where she came upon Tony John, wearing the star. He held a gun directly in her face. When he saw her, he dropped the gun from his hands. The landlord of the hotel came upon the scene about this time, when Tony John exclaimed: 'Me after Trotto. Trotto after me. I think Trotto in woman's clothes.' The plaintiff afterwards recovered from the shot, and brought this suit against Tony John, the sheriff, and the sheriff's bondsman. The trial resulted in a verdict and judgment as hereinbefore stated. The defendants have appealed from that judgment.

The appellants contend first that the court erred in overruling a general demurrer to the complaint, for two reasons: First, that the complaint does not show that Tony John was legally appointed a deputy sheriff; and, second, that it does not appear that he was acting within the scope of his authority at the time he did the shooting.

Paragraph VI of the complaint alleges that the sheriff----

'acting within the scope of his authority as sheriff, employed and deputized the defendant (commonly known as Tony John, but whose true name is to plaintiff unknown) and gave him a loaded revolver belonging to said county, and instructed him to carry the same upon his person, and gave to said John a deputy sheriff's star belonging to said sheriff's office, and directed him to display the same upon his person, and authorized, directed and instructed said John to arrest and secure the person of the said Trotto, and for that purpose to shoot him if necessary.'

It is argued by the appellants that the statute requires the appointment of a deputy to be in writing. The statute, at section 3990 (Rem. Code), is as follows:

'Each sheriff may appoint as many deputies as he may think proper, for whose official acts he shall be responsible to the amount of their (his) bond, and may revoke such appointments at his pleasure; and persons may also be deputed by any sheriff in writing to do particular acts; and the sheriff shall be responsible on his official bond for the default or misconduct in office of his deputies.'

It is plain from this statute that the sheriff is authorized to make general and special appointments. If the appointment is to do particular acts, then it must be in writing, but not otherwise. The appointment in this case, as alleged in the complaint, and proved upon the trial, was made by the sheriff giving the deputy a star with the words 'Deputy Sheriff' imprinted thereon, handing him a revolver, and telling him to go and arrest the...