Gray v. De Bretton
| Decision Date | 03 April 1939 |
| Docket Number | 35207. |
| Citation | 188 So. 722,192 La. 628 |
| Court | Louisiana Supreme Court |
| Parties | GRAY v. DE BRETTON, Sheriff, et al. |
Rehearing Denied May 1, 1939.
Certiorari to Court of Appeal, First Circuit.
Action by Ellis Gray, individually and on behalf of Albert Gray and George Gray, his minor children, against Newman Henry de Bretton, Sheriff of East Baton Rouge parish, and the Great American Indemnity Company, surety on his official bond, and another. To review a judgment of the Court of Appeal, 184 So 390, affirming a judgment of the district court sustaining an exception of no cause or right of action against the named defendant, the plaintiff applies for writ of certiorari or writ of review.
Affirmed.
J. Bernard Cocke, of New Orleans, for applicant.
Laycock & Moyse and Taylor, Porter & Brooks, all of Baton Rouge, for respondents.
This case is before us on a writ granted to review the decision of the Court of Appeal for the First Circuit, affirming the judgment of the Nineteenth Judicial District Court, Parish of East Baton Rouge, sustaining an exception of no cause or right of action filed by N.H. deBretton, Sheriff, and the Great American Indemnity Company, surety on his official bond.
The suit is by Ellis Gray, individually, and for the use and benefit of his minor children, Albert and George Gray, against the sheriff for the Parish of East Baton Rouge, his official surety, and Charles V. Pocorello, deputy sheriff. Plaintiff's action grows out of an automobile accident that occurred in the Parish of East Baton Rouge on May 27, 1937. On that day, according to the petition, deputy sheriff Pocorello, acting under orders and instructions of sheriff deBretton, arrested Henry White for disturbing the peace, near the Town of Zachary in the Parish of East Baton Rouge. After taking White into custody, Pocorello and another deputy sheriff placed him in an automobile belonging to the sheriff for the purpose of carrying him to the sheriff's office and confining him in the parish jail in the City of Baton Rouge. Pocorello, accompanied by the prisoner White and the other deputy sheriff, then proceeded to drive the automobile to Baton Rouge. Plaintiff alleges that Pocorello drove the car at an excessive rate of speed and that while he was attempting to make a curve in the highway, the automobile he was driving struck a guard rail on the side of the road where plaintiff and his two sons were walking, knocked them against the rail and threw them down an embankment, causing the injuries for which damages are sought. The sheriff and the surety on his official bond are sought to be held liable for the alleged negligence of the deputy sheriff in operating the automobile while he was engaged in the performance of an official duty.
In support of their exceptions, the sheriff and the surety on his official bond urged: (1) that as the result of the repeal of Article 764 of the Code of Practice by Act No. 27 of the Third Extra Session of 1934, the defendant sheriff and his official surety are not liable for the wrongful acts of the sheriff's deputy, who is himself a state officer; (2) that even if there is liability, no liability attaches in this case to the sheriff and his official surety, because on the face of the petition it appears that the alleged wrongful act of the deputy was not committed by him in the discharge of an official duty or as the result of the performance of an official act.
In passing upon the first of these two points the trial judge, in a well reasoned opinion, ruled that Article 764 of the Code of Practice was repealed in its entirety by Act No. 27 of the Third Extra Session of 1934, but that in view of the provisions of Act No. 52 of 1880, relative to sheriffs and the bonds to be furnished by them, the repeal of the codal article did not affect the liability of the sheriff for his deputy's violation of or failure to perform an official duty. The ruling of the trial judge was approved and affirmed by the Court of Appeal. The correctness of these rulings is not questioned by the relator before this Court. His case is briefed here on the clear cut proposition that a deputy sheriff, while conveying a prisoner in an automobile from the place of arrest to the parish jail, is engaged in an official act and if, while so engaged, he injures a person on the public highway, the sheriff and his official surety are liable to the person injured by the deputy's wrongful act. This relieves us of the necessity of reviewing the first point urged by defendants in support of their exceptions. We shall, therefore, proceed to the consideration of the second point urged by defendants.
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 acts and omissions of the sheriff himself. So far as the responsibilities of the office are concerned, the sheriff is liable for the acts and omissions both of himself and his deputy. Rich v. Graybar Electric Co., 125 Tex. 470, 84 S.W.2d 708, 102 A.L.R. 171, and annotations 102 A.L.R. 182, ix.
The conditions of the official bond required of a sheriff are set forth in Act No. 52 of 1880, and the obligation of the bond is that the sheriff shall well and faithfully execute and make true returns of all such writs, orders and process as shall come into his hands as sheriff, and shall faithfully do and perform all such other duties as may be required of him by law. The surety on the bond is liable for the violation of an official duty by a deputy, or by his failure to perform his duty faithfully to the same extent as the surety is liable for the official acts or omissions of the sheriff himself.
In this case there is no question of failure to perform an official duty. The complaint is that Pocorello, the deputy, committed a wrong while acting in an official capacity.
In order to impose liability on the sheriff and his official surety for the alleged wrong of the deputy sheriff, the petition should set forth facts showing that the alleged wrongful act of the deputy was committed while he was in the performance of an official duty and must have resulted from the wrongful manner in which such official duty was performed. This the petition does not do.
The ultimate facts as disclosed by the petition are that Pocorello was a deputy sheriff, and that while conveying a prisoner in an automobile from a place near the Town of Zachary to the parish jail in the City of Baton Rouge, he negligently drove the automobile into plaintiff and his two sons who were walking on a bridge forming part of the public highway, causing the injuries for which damages are claimed. All the allegations contained in the petition, which show or tend to show that the injuries received by plaintiff and his sons resulted from an act committed by the deputy sheriff in the performance of an official duty, for which the sheriff and his surety are liable, are mere conclusions of law.
The petition discloses that there was no official connection between plaintiff and his sons, on the one hand, and the sheriff and his deputy, on the other. The suit is not one by a person under arrest or by a person with whom the deputy had any official relation, but is one by a third person claiming that he and his two sons were injured on a public road by the negligent operation of an automobile in which the deputy was conveying to the parish jail a third person whom he had arrested.
The question presented in this case is strikingly similar to the question presented in the case of McVea v Day, 6 La.App. 382. In that case it was alleged that a deputy sheriff, while on his way to investigate certain suspected violations of the law, ran into and damaged the automobile of the plaintiff McVea. The suit was brought against Mrs. Eudora S. Day, the sheriff, and her surety for ensuing damages. The Court of Appeal held that there was no liability on the part of the defendants, because the petition failed to show that the alleged wrongful act of the deputy was in violation of an official duty, or in the...
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