Gates v. Hanover Ins. Co.

• Decision Date: 03 February 1969
• Docket Number: No. 3326,3326
• Citation: 218 So.2d 648
• Parties: Rodney P. GATES, Individually and as Natural Tutor and Administrator for the Use and Benefit of the Minor, Victoria B. Gates v. The HANOVER INSURANCE COMPANY, Salvador Mackles, Jr., Aetna Casualty and Surety Company, and John F. Rowley, Sheriff of St. Bernard Parish.
• Court: Court of Appeal of Louisiana — District of US

Page 648

218 So.2d 648

Rodney P. GATES, Individually and as Natural Tutor and Administrator for the Use and Benefit of the Minor, Victoria B. Gates v. The HANOVER INSURANCE COMPANY, Salvador Mackles, Jr., Aetna Casualty and Surety Company, and John F. Rowley Sheriff of St. Bernard Parish.

No. 3326.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 3, 1969.

Wicker, Wiedemann & Fransen, Lawrence D. Wiedemann, New Orleans, for Rodney P. Gates, plaintiff-appellant.

Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for Aetna Casualty and Surety Co., third-party plaintiff-appellant.

Bernard, Micholet & Cassisa, Emile L. Turner, Jr., and Bienvenu & Culver, Ernest L. O'Bannon, New Orleans, for John F. Rowley, defendant and third-party defendant-appellee.

Before SAMUEL, CHASEZ and BARNETTE, JJ.

BARNETTE, Judge.

The plaintiff, Rodney P. Gates, individually and on behalf of his minor daughter, Victoria B. Gates, and third party plaintiff, Aetna Casualty and Surety Company, have appealed from a judgment maintaining an exception of no cause of action and dismissing their petitions against defendant John F. Rowley, sheriff of St. Bernard Parish.

Plaintiff seeks recovery of damages arising out of the collision of an automobile, in which Victoria B. Gates allegedly was a guest passenger, with an ambulance allegedly owned by defendant Rowley. The petition alleges that the ambulance was driven by Deputy Sheriff Salvador Mackles Jr., who at the time in question was acting in the course and scope of his duties as deputy sheriff under the personal direction and control of Sheriff Rowley. Plaintiff seeks to impute Mackles' alleged negligence to Sheriff Rowley. Mackles is also made a defendant in his individual capacity.

Aetna Casualty and Surety Company was made a party defendant on the allegation that it was the liability insurer of the host automobile, driven by Delores C. Harp, who was also charged with negligence by plaintiff. Thereafter, Aetna assumed the position of third party plaintiff for contribution against the third party defendants, The Hanover Insurance Company, Mackles and Rowley.

Sheriff Rowley filed an exception to the court's jurisdiction based on his immunity from suit, and an exception of no right or cause of action directed to the plaintiff's petition and to the third party petition. More specifically he asserts that '* * * neither a Sheriff nor his surety on his official bond is responsible for the wrongful act of a Deputy Sheriff, unless such act was done in violation of an official duty, or an unfaithful or improper performance of an official act.'

The district court maintained the exception of no cause of action and dismissed the plaintiff's petition and the third party petition. In his reasons for judgment, the trial judge relied entirely upon the authority of Gray v. De Bretton, 192 La. 628, 188 So. 722 (1939), and held that in that case the Supreme Court stated the jurisprudence of Louisiana on this subject, and '* * * distinguished between a public and private duty owed by a sheriff and his surety to third persons who were injured through the negligence of a deputy sheriff.'

The question of a sheriff's and his official surety's liability for damages for wrongful or negligent acts of a deputy while in the discharge of the duties of his office has been before the courts of Louisiana many times. Our jurisprudence clearly distinguishes the liability of a sheriff for malfeasance, nonfeasance or improper performance of an official duty by a deputy, from the wrongful or negligent acts of a deputy while in the performance of a non-official act.

In the following cases, recovery of damages against the sheriff was allowed:

An unlawful assault was commited by a deputy on a prisoner in the official custody of the sheriff in a parish jail, Polizzi v. Trist, 154 So.2d 84 (La.App.4th Cir. 1963); a judgment sustaining an exception of no cause of action was reversed and the case remanded for trial on allegation that deputy sheriff shot plaintiff who was attempting to surrender to him for arrest, Jackson v. Steen, 92 So.2d 280 (La.App.2d Cir. 1957); a bystander was shot by a deputy sheriff for allegedly interfering with the deputy's investigation of a highway accident, Robertson v. Palmer, 55 So.2d 68 (La.App.1st Cir . 1951); sheriff held for the violent assault by deputies upon an alleged 'peeping tom' suspect in the course of arresting him. Dufrene v. Rodrigue, 38 So.2d 511 (La.App.1st Cir. 1949); liability imposed for damages resulting from deputy's negligent operation of an automobile causing injury to a man under arrest and being transported in the automobile, Rhodes v. Jordan, 157 So. 811 (La.App .2d Cir. 1934). In this case there was the additional circumstance of a public liability insurance policy covering the automobile in which the arrested man was a passenger.

In Webb v. Zurich Insurance Company, 251 La. 558, 205 So.2d 398 (1967), recovery was allowed for survivors of persons killed in the crash of an airplane owned by a sheriff and piloted by his deputy at the time of the fatal accident. Judgment was rendered in the district court against the sheriff subject to the limits of recovery of his liability insurance. The Court of Appeal held that at the time of the accident the pilot was not acting under the control and supervision of the sheriff, and dismissed the suit against him and his liability insurer. On writs to the Supreme Court, the Court of Appeal was reversed. The Supreme Court held that because the airplane could not be used without the specific consent and authorization of the sheriff, then at the time of the crash the aircraft was under the absolute control of the pilot, acting as the agent of the sheriff. However, the Court did not pursue any determination of the liability of the sheriff and his surety under the factual circumstances of the case because the sheriff did not appeal. The opinion of the Supreme Court is devoted primarily to a discussion of the right of direct action against the liability insurer arising out of an accident which occurred outside the territorial limits of this State, and thus is not apposite to the case before us.

In the following cases recovery was denied against the sheriff for acts of his deputy:

Where deputy shot an alleged 'bootlegger' in the back, it was held that facts did not support he was acting under the orders and supervision of the sheriff, Britt v. Merritt, 219 La. 333, 53 So.2d 121 (1951); sheriff not liable where deputy negligently struck pedestrian while transporting a prisoner to the parish jail, Gray v. De Bretton, supra; allegations that deputy recklessly assaulted and shot person are not enough proof to hold sheriff liable in absence of sufficient evidence to show that the acts were done in violation or in an unfaithful or improper performance of an official act, Sanders v. Humphries, 143 La. 43, 78 So. 168 (1918); deputy was held to have acted in the capacity of a private citizen when he shot a fellow patron of a night-club who had engaged in a fight with a third person, Bolton v. Sevario, 25 So.2d 115 (La.App.1st Cir. 1946); deputy was a participant in a conspiracy to persuade a woman to return to her estranged husband. In the course of attempting an illegal arrest, deputy shot innocent bystander. Held this was outside the authority of his office, Davis v. McDowell, 185 So. 634 (La.App.2d Cir. 1938); sheriff not liable where deputy involved in automobile accident while traveling to investigate official matter, McVea v. Day, 6 La.App. 382 (La.App.1st Cir. 1927).

Gray v. De Bretton, supra, was a suit for recovery of damages against the sheriff and the surety on his official bond because of the alleged negligence of a deputy sheriff in driving an automobile off the highway thereby injuring pedestrians. In denying recovery the Court applied the established principle in our jurisprudence, and said:

'In discussing this point it must be borne in mind that no liability attaches to the defendant sheriff under the doctrine of respondeat superior, or under the doctrines of master and servant and principal and agent. The relation between a sheriff and his deputy is an official and not a private relation. The deputy is not a representative of the sheriff in his individual capacity, but he is a public officer whose authority and duty are regulated by law. As to the public, whose servants these officers are, the acts and omissions of a deputy sheriff are the...