Geros v. Harries

• Decision Date: 07 April 1925
• Docket Number: 4224
• Citation: 65 Utah 227,236 P. 220
• Court: Utah Supreme Court
• Parties: GEROS v. HARRIES et al

236 P. 220

65 Utah 227

GEROS v. HARRIES et al

No. 4224

Supreme Court of Utah

April 7, 1925

Appeal from District Court, Third District, Salt Lake County; L. B Wight, Judge.

Action by Aleck Geros against Benjamin R. Harries and others. Judgment for plaintiff, and defendants appeal.

AFFIRMED.

Willard Hanson and B. L. Liberman, both of Salt Lake City, for respondent.

Stewart Alexander & Budge, and R. L. Judd, all of Salt Lake City, for appellants.

FRICK J. GIDEON, C. J., and THURMAN, CHERRY, and STRAUP, JJ., concur.

OPINION

FRICK, J.

Plaintiff brought this action to recover damages for personal injuries suffered by him as will hereinafter appear against the sheriff of Salt Lake county, two of his deputies, and the Maryland Casualty Company as surety on the sheriff's official bond. After stating the necessary matters of inducement and jurisdictional facts it is alleged in the complaint:

"That on the 2d day of September, A. D. 1923, defendant Benjamin R. Harries, as sheriff of Salt Lake county, and the defendants John W. Harris and Arthur S. Nicholls, as deputy sheriff of Salt Lake county, Utah, acting under the direction and authority of said sheriff, entered upon the premises of plaintiff's restaurant situated at 579 West Second South street, as aforesaid, and did then and there leave with an employee of the plaintiff pretended search and seizure warrant for intoxicating liquors, issued by Justice George E. Parkin, Justice of the Peace of Salt Lake county, Utah, on September 2, 1923, against John Doe, and that when the said defendants entered said premises plaintiff was proceeding to the rear room of said restaurant for the purpose of changing his clothes which were kept at said premises, and that, as he proceeded, he was followed by the defendants John W. Harris and Arthur S. Nicholls, deputy sheriffs as aforesaid; that plaintiff did not know said deputy sheriffs, nor was he aware of the fact that the said individual defendants intended to make a search of said restaurant under said search and seizure warrant, or of the fact that said officers had said pretended warrant, and the said officers did not impart said information to plaintiff, but said deputy sheriffs John W. Harris and Arthur S. Nicholls nevertheless followed plaintiff to said rear room in the restaurant; that plaintiff, seeing the said defendants following him, being of small stature and slight physique, became alarmed lest the defendants intended to commit a robbery or assault upon him, and that plaintiff thereupon, with intent to avoid said robbery or bodily injury, stepped into a court adjoining said restaurant and then entered from the rear, the neighboring premises, being a confectionery and soft drink store, and then went through said store, through the front door of the same out into West Second South street, and that during all of said time the said defendants continued to follow plaintiff without saying a word, and that plaintiff, being apprehensive of bodily injury to himself, stepped off the sidewalk in front of said premise in West Second South street and started to run across the street, and that thereupon the defendant John W. Harris drew his revolver and fired point-blank at plaintiff at a distance of approximately 15 to 20 feet from plaintiff, and that the bullet from said revolver penetrated plaintiff's right shoulder, pierced his lungs, and passed out through his chest; that plaintiff continued running, and that the said deputy sheriff John W. Harris continued firing his revolver at plaintiff; that all of said shots were fired by the said John W. Harris in the presence of and with the consent of the defendant Benjamin R. Harries, and that all of the acts herein complained of were performed by the said defendants acting under the color of their offices as sheriff and deputy sheriffs of Salt Lake county, Utah."

The consequences of the injury and the damages sustained are then set forth in detail. The bond is also set forth in full and made a part of the complaint. Each one of the defendants interposed a general demurrer to the complaint, which demurrers were overruled by the court.

We have set forth certain portions of the complaint in full for the reason that it is strenuously insisted that the complaint does not state facts sufficient to constitute a cause of action. The particular objection to the complaint is that it does not appear therefrom that the acts of the sheriff and his deputies, which are complained of, were committed pursuant to legal process or by authority of law. This contention is principally based upon the statement in the complaint that the search and seizure warrant under which the sheriff and his deputies acted was a "pretended search and seizure warrant." In view of that, it is contended that the warrant was spurious and void conferring no authority.

It is not necessary to analyze the averments of the complaint. It is sufficient to say that, while it is not a model pleading, it, nevertheless, is not so lacking in essential averments as to be vulnerable to a general demurrer. In determining the sufficiency of the allegations of a complaint, and especially of one like the one in question here, one must not have recourse to only certain parts of the complaint, but must determine the effect that should be given to the complaint when considered as a whole. The defendants, however, cite and rely upon the following cases in support of their contention: People v. Pacific Surety Co., 50 Colo. 273, 109 P. 961, Ann. Cas. 1912C, 577; Felonicher v. Stingley, 142 Cal. 630, 76 P. 504; People v. Beach, 49 Colo. 516, 113 P. 513, 37 L.R.A. (N. S.) 873; Jones v. Van Bever, 164 Ky. 80, 174 S.W. 795, L.R.A. 1915E, 172; Gerber v. Ackley, 37 Wis. 43, 19 Am. Rep. 751. A mere cursory reading of the foregoing cases will disclose that they are clearly distinguishable from the case at bar. In those cases it clearly appeared from the averments in the complaints that the acts complained of were not official acts, and hence it was held that the averments were insufficient as against the surety on the official bond. It may, however, be said in this connection that in those cases the rule of pleading is more strictly enforced than it is in a large number of other cases to which we shall hereinafter refer.

If the averments in the complaint in the case at bar are considered together, as they must be, there can be no doubt that the acts complained of appear to have been committed by authority of law and pursuant to the search and seizure warrant which had been issued and delivered to the officers, and that they were acting under it, and hence their acts were official acts. Gomez v. Scanlan, 155 Cal. 528, 102 P. 12; Meek v. Tilghman, 55 Okla. 208, 154 P. 1190; Lee v. Charmley, 20 N.D. 570; 129 N.W. 448, 33 L.R.A. (N. S.) 275, and Greenberg v. People, 225 Ill. 174, 80 N.E. 100, 8 L.R.A. (N. S.) 1223, 116 Am. St. Rep. 127, are cases where the averments in the complaints were less specific than they are in the complaint in this case, and it was nevertheless held in all of them that the averments were sufficient to withstand a general demurrer. If, in this case, defendants were in doubt respecting the nature or character of the acts complained of, they should have demurred specially and asked the court to require the plaintiff to make his averments more specific and certain. The most that can be said is that if the complaint is defective it is because the averments respecting the character of the acts were not sufficiently specific. The complaint therefore comes within the rule of a defective statement of a cause of action, and not within the rule that some essential averment is lacking, and hence no cause of action is alleged. A cause of action defectively stated cannot be reached by a general demurrer. It follows from what has been said that the district court committed no error in overruling the demurrers.

There is, however, another insurmountable obstacle to defendants' contention. Each of the defendants filed a separate answer. In the answers of the deputy sheriffs as well as in that of the sheriff it is not only expressly admitted that all of the individual defendants entered the premises of the plaintiff pursuant to the search and seizure warrant, but in all of their answers it is affirmatively alleged that they "entered upon the premises mentioned in the complaint on said 2d day of September, 1923, pursuant to a search and seizure warrant duly issued for the purpose of making a search for and seizing intoxicating liquors that might be upon said premises." Indeed, the character and purpose of the acts of the sheriff and his deputies are fully set forth so that there is and can be no doubt respecting them. Moreover, on the trial of the action, the search warrant was introduced in evidence by plaintiff without objection by defendants, and they frequently referred to it as justification for their acts, and it was established by undisputed evidence beyond all reasonable doubt that the acts of the sheriff and his deputies who are defendants in this action were done to vindicate the law and pursuant to the command of the search and seizure warrant.

True, the defendant surety company did not set forth the foregoing facts in its answer. That is, however, immaterial here for two reasons: (1) Because the complaint did in fact state a cause of action; and (2) for the reason that the surety company did not present any affirmative defense to the action other than that interposed by the sheriff, its principal. That is, the surety company, at the trial, relied entirely on the defense of the sheriff, and if that defense failed, it had no defense.

The defendants, however, insist that, inasmuch as they had interposed a general demurrer in...