Ivy v. Osborne

• Citation: 279 S.W. 384
• Parties: IVY v. OSBORNE et al.
• Decision Date: 16 January 1926
• Court: Supreme Court of Tennessee

Page 384

279 S.W. 384

IVY v. OSBORNE et al.

Supreme Court of Tennessee.

January 16, 1926.

Appeal from Circuit Court, Knox County; A. C. Grimm, Judge.

Action by Geneva Ivy against John Osborne and others. Judgment for defendants, and plaintiff appeals. Affirmed in part, and in part reversed and remanded.

Neal B. Spahr, of Knoxville, for Geneva Ivy.

Johnson & Cox, of Knoxville, for John Osborne and others.

COOK, J.

This is an action against the sheriff and sureties on his bond and the deputy sheriff and sureties on his bond for the tortious act of the deputy.

It is charged that John Osborne, deputy sheriff, acting in his official capacity, without a warrant, unlawfully arrested plaintiff, who had committed no offense, stating that he had received a call requesting him to arrest the occupants of the car in which plaintiff was riding for disorderly conduct; that despite assurances of innocence and protest against the arrest Osborne arrested plaintiff and others who were with her in the automobile, carried them before a justice of the peace, and upon plaintiff's refusal to pay a sum of money she was committed to jail; that while making the arrest and after she was in custody the deputy mistreated her, by cursing and the application of vile epithets; that a day after the commitment she was released on bond, and after continuance of the case from time to time it was subsequently dismissed for failure of the deputy to appear and prosecute.

All the defendants demurred to the declaration, except Osborne. The sheriff demurred, because the declaration disclosed a tortious act of the deputy done without color of authority; the sureties, upon the same ground, and in addition that the penalty of the bonds of the sheriff and the deputy limited their obligation to liability flowing from official misconduct, and that they are not liable for the personal wrong of either the sheriff or his deputy.

It appears from the declaration that the deputy sheriff arrested plaintiff without authority. He had no warrant, and no offense was committed in his presence. The liability of the sheriff, for the acts of the deputy, is not controlled by any statute of this state, but is grounded upon the common law. For failure of the deputy to properly perform an official act, deemed the act of the principal, the sheriff and his bondsmen would be directly liable to the person aggrieved. Rose v. Lane, 3 Humph. 218. But for wrongs done while acting beyond the scope of his authority, the deputy alone is liable as a personal wrongdoer. Miles v. Wright, 12 A. L. R. 980, note 2; Murrell v. Smith, 3 Dana (Ky.) 463; 35 Cyc. 1613.

Some authorities declare a sheriff liable for all official misconduct of his deputy, and also for acts not required of him by law, where the deputy assumes to act under color of office, and hold that such acts may include wrongs and trespasses done under color of office. Other authorities take the view that, in order to carry the liability to the principal, the act of the deputy must be by virtue of the office, and interpreting this rule it is held that, in order for the deputy's act to have that character, it must be done in an attempt to serve or execute a process, or under a statute giving him the right to arrest without a warrant, and if he acts otherwise he is doing so as an individual. 24 R. C. L. pp. 281, 282, par. 75. The Tennessee courts follow the rule last stated, upon the reasoning that the deputy acts in lieu of the sheriff and in his name, and representing the sheriff officially, and not as an agent, the authority of the deputy is limited to official acts.

The bond of the deputy is conditioned upon the faithful discharge of official duty. It is a private bond, payable to the sheriff, and for...