Hanie v. Penland, (No. 558.)
| Decision Date | 25 May 1927 |
| Docket Number | (No. 558.) |
| Citation | 138 S.E. 165 |
| Court | North Carolina Supreme Court |
| Parties | HANIE. v. PENLAND, Sheriff, et al. |
Appeal from Superior Court, Buncombe County; Schenck, Judge.
Civil action by Myrtle Hanie, administratrix of Garfield Hanie, against D. H. Pen-land, Sheriff, and another. From a judgment of nonsuit as to named defendant, plaintiff appeals. Affirmed.
The plaintiff is the duly appointed administratrix of Garfield Hanie, her husband, who was killed by the defendant Joe Rice on or about the 7th day of April, 1924. The plaintiff further alleged, and offered evidence tending to show, that Joe Rice was a special deputy of the defendant D. H. Penland, shor-iff of Buncombe county; that on or about the 6th day of April, 1924, the said Joe Rice went to the office of B. D. Lyda, a justice of the peace of Asheville, and made an affidavit, upon oath, that one ——did unlawfully, etc., maintain and set up a gambling board, to wit, "a punchboard, " etc. Thereupon on the said 6th day of April, 1924, the said justice of the peace issued a warrant directed "to any constable or other lawful officer of Buncombe county, " commanding the arrest of "John Doe, alias." Thereafter on the 7th day of April, 1924, the said Joe Rice, special deputy, went to Woodfin on the Weaverville road, and saw a man, who, he was informed, was the "punchboard man." This unidentified person got in his car and started to move off. Rice jumped on the running board. The occupant of the car either pushed Rice off the car or Rice got off, and thereupon drew his pistol and began to fire at the car. Garfield Hanie, plaintiff's intestate, passed by the side of the car at that time and was shot by the defendant Rice and killed. It does not appear who the occupant of the car was, or whether he was the "punchboard" man or not. Garfield Hanie, plaintiff's intestate, was an innocent bystander and had no connection whatever with the transaction. The defendant Rice contended that the shooting of Hanie was an accident. However, he filed no answer and judgment was taken against him by default. The cause of action alleged by plaintiff against the defendant Penland is based upon the theory that the sheriff is responsible for the negligence of his deputies.
The ninth paragraph of the complaint is as follows:
"That by reason of the negligence of the defendants in the manner and respect herein alleged, and as a proximate cause thereof, the plaintiff's intestate was unlawfully and wrongfully killed by the defendants above named."
At the conclusion of plaintiff's evidence there was judgment of nonsuit, and the plaintiff appealed.
W. R. Gudger and Zeb P. Curtis, both of Ashville, for appellant.
A. Hall Johnston, of Ashville, for appellee Penland.
The cause of action alleged in the complaint was for wrongful death of Garfield Hanie, plaintiff's...
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