Gray v. De Bretton

• Decision Date: 17 November 1938
• Docket Number: 1897
• Citation: 184 So. 390
• Court: Court of Appeal of Louisiana — District of US
• Parties: GRAY v. DE BRETTON et al

184 So. 390

GRAY v. DE BRETTON et al

No. 1897

Court of Appeal of Louisiana, First Circuit.

November 17, 1938

J Bernard Cocke, of New Orleans, for appellant.

Laycock & Moyse, Taylor Porter & Brooks, and Fred S. LeBlanc, all of Baton Rouge, for appellees.

OPINION

OTT Judge.

Plaintiff brings this suit for himself and on behalf of his two minor children, Albert and George Gray, seeking to recover damages for himself and his two minor sons in the total sum of $ 10,000, of which amount $ 200 is for himself individually, the sum of $ 800 for George Gray and the sum of $ 9,000 for his son Albert Gray, for physical injuries suffered by them on May 29, 1937, when they were run into by an automobile driven by Charles V. Pocorello, a deputy sheriff of East Baton Rouge Parish, while he was conveying a prisoner from Zachary to Baton Rouge. The sheriff of the parish and the surety on his official bond, The Great American Indemnity Company, were made parties defendant and sought to be held liable for the alleged negligence of the deputy in operating the car on the theory that the deputy was at the time of the injury engaged in the performance of an official act.

It is alleged that the said deputy was driving the car of the sheriff and acting under his instructions in arresting the said prisoner whom he was conveying to Baton Rouge for incarceration in jail, and was in the performance of an official duty as a deputy sheriff of the parish; that after arresting the said prisoner and placing him in the said car, the deputy sheriff, in company with another deputy, got in the car and the said Pocorello proceeded to drive the said car to Baton Rouge; that said deputy drove said car at an excessive rate of speed, and while attempting to make a curve in the highway at an excessive speed, the car driven by said deputy struck a guard rail on the side of the road where plaintiff and his two sons were walking, knocking them against and over the guard rail, and throwing them down an embankment, causing the injuries for which damages are sought.

All three defendants filed exceptions of no cause or right of action, and the exceptions filed by the sheriff and his surety were sustained, and the suit as to them was dismissed. The exception filed by the deputy sheriff was overruled. The case is here on an appeal by the plaintiff from the judgment which dismissed his suit as to these two defendants. These two defendants have answered the appeal and ask that the judgment be affirmed insofar as it sustained the exception of no cause or right of action filed by them, but that the judgment be amended so as to maintain all points urged by them in the lower court.

There are four separate and distinct points raised for consideration by the exceptions filed by these two defendants: (1) Whether or not the petition shows affirmatively that the plaintiffs were guilty of contributory negligence in walking on their right hand side of the road instead of on their left side as the law requires; (2) whether or not that part of Article 764 of the Code of Practice making the sheriff responsible for the acts of his deputies has been repealed by Act No. 27 of the Third Extra Session of 1934; (3) if said article has been repealed in its entirety, whether or not there is any law in this state by which the sheriff and his official surety can be held liable for the wrongful acts of a deputy in discharging an official duty; and (4), if there is such liability, whether or not the particular acts of negligence charged to the deputy in the operation of the automobile in which he was conveying a prisoner to jail, constitute such an improper and unfaithful performance of an official duty as to render the sheriff and his official surety liable therefor. We will undertake to discuss these points in the order named.

(1). We do not find that the petition shows on its face any contributory negligence on the part of plaintiff and his two sons. According to the petition, they were walking along the highway (the petition does not say on which side) traversing a curve in the road when they saw the headlights of a fast approaching automobile about 200 feet away coming toward them in a southerly direction, said automobile then approaching the curve in the highway which plaintiff and his two sons were traversing; that as a precaution to avoid injury by said automobile, they stopped walking, stood still, and hugged the outer edge of the curve against the guard rails on their right hand side of said road; that in doing so, they placed themselves in single file, or Indian fashion, as close to said guard rail as possible.

Accepting these allegations as true, as we must for the purpose of the exception, while plaintiff and his two sons were on their right hand side of the road, yet they were up against the guard rail and were not walking on the road in the path of vehicular traffic. If there was any negligence on their part in hugging the edge of the road, against the guard rail on the right hand side (and we see no negligence in doing so), certainly such negligence was not the proximate cause of the accident.

(2). Article 764 of the Code of Practice authorizes the sheriff, with the approbation of the judge, to appoint as many deputies as he thinks fit, but he "remains" responsible for them, and these deputies are required to take an oath. Section 3542 of the Revised Statutes (Dart's Statutes, §7480) authorized the sheriff to appoint as many deputies as he may think necessary, without the approval of any one, but this section was superseded by the above mentioned article of the Code of Practice which required the approval of the judge. Williams, Sheriff, v. Guerre, Superintendent, et al., 182 La. 745, 162 So. 609. Section 3542 of the Revised Statutes was revived and re-enacted by Act No. 27 of the Third Extra Session of 1934, and Article 764 of the Code of Practice was specially repealed. This had the effect of reviving and amending the old section of the Revised Statutes, and permitted the sheriff to appoint his deputies, but instead of the approval of the judge being required as provided for in the article of the Code of Practice, the authorization and approval of the Superintendent of the Bureau of Criminal Identification and Investigation was required, and nothing was said in said Act No. 27 about the sheriff "remaining" responsible for the acts of his deputies appointed under the act.

From this situation it is argued that, as the article of the Code of Practice which provides that the sheriff shall "remain" responsible for his deputies has been repealed, there is now no law in this state making a sheriff liable for the acts of his deputies. Counsel for the plaintiff, on the other hand, contends that, while Act No. 27 of the Third Extra Session of 1934 does specifically repeal Article 764 of the Code of Practice, yet that part of the article making sheriffs liable for the acts of their deputies was not intended to be repealed and was not repealed by said act. In support of his argument on this point, counsel gives a very interesting history of the purpose for the passage of said Act No. 27; i. e., in order to place control of the appointment of deputy sheriffs under the then dominant political faction in this state; that there was no reason, in effectuating this purpose of the act, to relieve sheriffs from liability for the acts of their deputies, and it is unreasonable to believe that the Legislature intended to do so. The repeal of a law is either express or implied; it is express, when it is literally declared by a subsequent law it is implied, when the new law contains provisions contrary to, or irreconcilable with those of the former...