Island v. Helmer

• Decision Date: 18 February 1935
• Docket Number: 7732
• Citation: 63 S.D. 362,258 N.W. 812
• Parties: CLIFFORD ISLAND, Respondent, v. ARTHUR HELMER, George D. Stewart, and the State Bonding Department, et al, Appellants.
• Court: South Dakota Supreme Court

63 S.D. 362

258 N.W. 812

CLIFFORD ISLAND, Respondent, v. ARTHUR HELMER, George D. Stewart, and the State Bonding Department, et al,

Appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Lawrence County, SD

Hon. James McNenny, Judge

#7732—Affirmed

Kellar & Kellar, Lead, SD

Attorneys for Appellant Arthur Helmer.

Walter A. Conway, Attorney General, Pierre, SD

Attorney for Appellant State Bonding Department.

Gale B. Wyman, Deadwood, SD

Morrison & Skaug, Mobridge, SD

Attorneys for Respondent.

Opinion filed Feb 18, 1935

RUDOLPH, J.

This action was brought by the plaintiff to recover damages he sustained as the result of being shot by the defendant George D. Stewart. Stewart was the deputy sheriff of Lawrence county. The defendant Helmer was the sheriff of Lawrence county, and the defendant state bonding department had furnished Helmer’s official bond. The jury returned a verdict against all defendants, and the defendant Stewart has not appealed. The defendants Helmer and the state bonding department have taken this appeal from the judgment entered against them and from the order denying their motion for a new trial.

The first assignment of error questions the sufficiency of the evidence to support the verdict. The appellants contend that there is no evidence in the record from which the jury could find that the defendant Stewart was acting in his official capacity as deputy sheriff at the time the plaintiff received his injury. In considering this assignment of error, it is, of course, necessary to view the evidence in its light most favorable to the plaintiff. Miller v. Johnson, 207 N.W. 478; Kadlec v. Langlois, 244 N.W. 96; Jamieson v. Gerth, 249 N.W. 921.

The plaintiff’s evidence discloses that during the month of June, the plaintiff and three other young men were working a placer claim and camping on a creek about two miles from the town of Tinton in the Black Hills country. On the evening of June 21st, the four young men had their supper in their cabin at which time they drank several bottles of “home-brew.” After finishing their meal, the plaintiff and two of his companions left the camp to go to Tinton to mail some letters. Several bottles of home-brew were taken by the young men to Tinton. When nearing Tinton, the boys took a short cut through the timber and were “making a good deal of racket.” The postmaster at Tinton had a police dog, and, as the boys came near the post office, this dog added to the noise they were making by barking. The noise was sufficient to awaken Mr. Schultz, the postmaster, who had retired for the night. and he got up and went down to find out what the noise was all about. When Schultz came out the three boys wanted him to drink some of the home-brew with them, which Schultz refused. There was an automobile in the immediate vicinity of the post office. The boys and Schultz gathered near this automobile, the plaintiff sat on the running board and opened a bottle of beer, and had commenced drinking it just as the defendant Stewart came around the front of the car. Stewart, speaking to Schultz, said, “Earl, is this your party?” And Schultz replied, “No, by God, it is not my party or anything of mine.” Stewart then said, “I want this racket cut out then, and get out of town. Get a-going or take your choice and come to jail with me.” One of the boys who knew Stewart then tried to talk to him, and the plaintiff asked Stewart if he would have a drink, whereupon Stewart pulled his gun and shot. The plaintiff said. “My God, I am shot.” As the other boys attempted to go to him, the defendant Stewart said. “Stand back or I will blow your heads off,” and pointed the gun in the general direction of the members of the party. Stewart then asked that some one call the sheriff at Deadwood, and thereafter the plaintiff, Schultz, Stewart, and the other two boys of the party went into Deadwood. The plaintiff was taken to the hospital and his wound treated. On the way into the hospital Stewart made the remark, “As an officer of the law, I have the right to shoot and carry arms, and I am not paid for taking chances.”

The court instructed the jury as follows:

“Whether Stewart was acting in an official capacity at the time of the shooting depends upon the surrounding circumstances, and is a question for the exclusive determination of the jury. An official act is an act done by the officer in his official capacity under color or by virtue of his office.

“An official act may be established by circumstantial evidence. You have a right to consider, in determining this question. the statements and actions of defendant Stewart and all circumstances as related by the several witnesses, and determine therefrom whether or not Stewart shot plaintiff while engaged in his official capacity under color or by virtue of his office.

“... If the evidence discloses that the defendant Stewart was not provided with any warrant, or that the defendant Stewart was not justified in a reasonable belief that a felony had been committed, or if the evidence fails to disclose that a breach of the peace occurred or that any other misdemeanor or felony was committed in the presence of the defendant Stewart at or just prior to the time of the shooting, then you are instructed that the defendant Stewart was not acting under color of office as deputy sheriff.”

These instructions of the court were not excepted to and became the law of the case. We are satisfied that the evidence is sufficient under these instructions for the jury to find that, at the time in question, the defendant Stewart was acting under color or by virtue of his office. Under the evidence set out above, Stewart was confronted with a situation whereby his office as deputy sheriff gave him authority to act, at least the jury might so find. That he was acting under the authority conferred upon him as deputy sheriff is indicated by his words and actions. True, the evidence discloses that Stewart was also the caretaker of mining property located in the vicinity of Tinton, and it might be that the jury would have been justified in finding that at the time in question Stewart was acting in his capacity as such caretaker. However, the verdict of the jury denies that Stewart was acting in his capacity as caretaker, and affirms the contention of the plaintiff that Stewart was acting in his capacity of deputy sheriff. By reason of section 5956, the duty devolves upon the sheriff to “keep and preserve the peace within his county.” We are of the opinion that the jury, under the testimony disclosed, was amply warranted in concluding that Stewart was in the act of performing the duty provided in said section 5956, and was acting (within the meaning of the instruction above set out) with reference to a breach of the peace which had occurred “at or just prior to the time of the shooting.” It seems apparent also that, under the provisions of section 10278, a misdemeanor was being committed in the presence of Stewart, and that at the time in question his acts in part at least were influenced by the commission of this misdemeanor. This being true, the jury was justified in finding his act to be under color of office, within the meaning of the instructions given by the court.

Error is predicated upon the fact that the court submitted to the jury the issue of negligence. That is, the court instructed the jury that the plaintiff would be entitled to recover if the act of Stewart was either willful or negligent. Defendants contend that there was no issue of negligence raised by the pleadings, and that it was error to submit this question to the jury. The complaint is in general terms. There is no allegation that the act of Stewart was either willful or negligent. The facts upon which the cause of action is based are alleged, and there was no attempt by motion to make the complaint more definite and certain, or otherwise to confine the plaintiff to the theory of either a willful or negligent shooting. We believe the language contained in ...