Hodgson v. Hatfield
| Decision Date | 16 June 1925 |
| Docket Number | 15383. |
| Citation | 240 P. 69,112 Okla. 134,1925 OK 511 |
| Parties | HODGSON, Sheriff, et al. v. HATFIELD. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Oct. 13, 1925.
Syllabus by the Court.
The sheriff owes a duty to the public in all matters of his office where the public is directly interested, and also a duty to the individual in any matter the individual is directly interested in, and for the violation of either duty resulting in damages, is liable on his official bond.
The issue as to whether or not the property in controversy is partnership property is for the jury to determine under proper instructions of the court, and where interrogatories are submitted on this issue for the jury to answer, and they answer the same, and there is competent evidence to sustain the answers, this finding will not be disturbed on appeal.
Under section 1220, C. S. 1921, any person, whether officer or private citizen, who takes possession of money belonging to a deceased person before an executor or administrator is appointed and willfully misapplies it, is liable to the executor or administrator for the same, as therein provided.
The record examined, and held that the instructions of the court to the jury fairly state the law applicable to the facts in the case, and there was no error in refusing to give the defendants' requested instructions.
Commissioners' Opinion, Division No. 3.
Appeal from District Court, Woods County; Arthur G. Sutton, Judge.
Action by W. F. Hatfield, administrator of the estate of D. A Pollock, deceased, against Harry H. Hodgson, Sheriff of Woods County, Okl., and others, to recover money taken from the deceased by robbery. Judgment for plaintiff, and defendants appeal. Affirmed.
John Barry, of Alva, for plaintiffs in error.
Gus Hadwiger and W. L. Houts, both of Alva, for defendant in error.
This was an action against the sheriff, his bondsmen, and other parties to recover money alleged to have been taken from a prisoner and illegally appropriated. The facts, according to the record, are substantially as follows:
The plaintiff is the administrator of the estate of D. A Pollock, deceased; the defendant Harry H. Hodgson was sheriff of Woods county, and defendants Harry E. Mason, H. A Matteson, G. C. Nickel, E. Westling, Fred Fash, and E. A. Haines, were the sheriff's bondsmen; Porter Wynn was the prisoner from whom the money was taken by the sheriff, and John Barry was the attorney representing said Wynn, and to whom the money was paid as a fee for representing him. In September, and up to October 7, 1920, the decedent, D. A. Pollock, and defendant Porter Wynn were living together in a 3-room house in the northeast hills of Woods county, where they were engaged in the illicit business of making and selling whisky. Pollock's home was in Anthony, Kan., where his wife lived and their two children. Wynn and his wife and children lived together and occupied one room of the house out in the said hills, and Pollock with a mistress occupied the other room of said house. On October 7, 1920, the two men had an altercation in the kitchen before breakfast, caused by Pollock rebuking Wynn for slapping his wife, or insinuating conduct of Pollock to Wynn's wife. Pollock's mistress became alarmed over the trouble, and requested him to take her at once to Hartner, Kan. They started and tried to go in Pollock's Ford car, but it would not work, and then they proceeded to walk, and intended to go a distance of about two miles to where their landlord, Ezra Mays, lived, where they expected to get transportation to Hartner, Kan. When they had walked about a mile and a half and were within about one-half mile from Mays' house, Wynn came up out of a gorge upon them, and, pointing a gun at them, commanded them to throw up their hands and to throw upon the ground their pocketbooks, which they did. Wynn picked up the pocketbooks and took from Pollock's $500, in $5, $10, and $20 bills, and marched them back the way they came, the distance of a mile, then shot Pollock two or three times, which caused his death a few hours later, and Wynn took his family and escaped across the line to Kiowa, Kan., where he was arrested the next day at the railway station, and where he had bought a ticket and was waiting for a train to take him north. They took from his person the money in controversy and turned the same over to the sheriff, defendant, in this case, and said sheriff brought him to Alva and put him in jail, and he was thereafter tried, convicted, and sent to the state penitentiary for manslaughter. Soon after Wynn was placed in jail he employed John Barry as his attorney, and the sheriff, after consulting the county attorney and being advised that the state did not need the money as evidence, and after advising with the county judge, who acted as the examining magistrate, and who told him he did not know any reason why he should not return the money, delivered it to the attorney, John Barry, at the request of Wynn, to pay a part of his fee for representing him. It appears from the record that the sheriff had information that the money had been taken by force from Pollock. After the administrator was appointed he made demand of the sheriff for the money, which being refused, this action was commenced to recover double the amount.
1. After issues joined the cause was tried to a jury, October 23, 1923, and resulted in a verdict and judgment for plaintiff, and the defendants appeal by petition in error and case-made. They first contend that the sheriff owed no special duties to any individual who might have been the owner of the money that was taken from the prisoner, Wynn.
Defendants say this proposition is supported by the holding in the case of Eberhardt Const. Co. v. Board of County Commissioners, 106 Kan. 410, 186 P. 492, a Kansas case. We have examined this authority very carefully, and it appears that the court holds that where a contractor enters into a contract with the county commissioners and constructs improvements under said contract, without proper notice given as required by statute, that the contract is void, and there is no liability upon the county to pay; and this upon the theory that under a void contract there is no duty owing the individual by the public official, and without a legal contract there is no liability. The statutory requirements must be complied with in order to fix liability. We cannot see how this holding of the court had any application to the defendant's proposition that the sheriff of Woods county owed no duty to any person who might be the owner of the money in controversy. The case cited and discussed involved a void contract, and the court, in discussing the duty of public officials, states that they owe a duty to the public where the public interest alone is involved, and they also owe a duty to the individual where the individual interest is involved. In the instant case the sheriff had notice from parties who knew the facts that Wynn took about $500 from Pollock by force before he shot him. The next day after the killing the sheriff attended the coroner's inquest at the house of Ezra Mays, and heard the testimony of the witnesses as to what took place between the two men in the difficulty. He heard the testimony as to the money taken from Pollock; he also had information as to the amount of money taken from Pollock, and about the two pocketbooks, from parties who seemed to know the facts, at the time he went to Kiowa, Kan as sheriff, to bring the prisoner, Wynn, back to Oklahoma. All this information was sufficient notice to warn him that the money he received, with the prisoner, was claimed by the heirs of Pollock, and that he should take care of it or put it in the way of being taken care of for at least six months, subject to the orders of the court and rights of the owners. The Statutes, sections 2944, 2948, provide a procedure for taking care of and disposing of moneys stolen or embezzled, which are applicable when the defendant is arrested, discharged, and tried for the crime, but in a case where there is no arrest and trial for the particular crime, as in case the defendant is killed in flight after the robbery, or is charged...
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