Jackson v. Harries

Citation65 Utah 282,236 P. 234
Decision Date11 February 1925
Docket Number4152
CourtSupreme Court of Utah
PartiesJACKSON v. HARRIES et al

Petition for Rehearing Denied and Opinion Modified April 29 1925.

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

Action by Bertha Jackson against Benjamin R. Harries and others. Judgment for plaintiff, and defendants appeal.


Stewart, Alexander & Budge and R. L. Judd, all of Salt Lake City, for appellants.

Willard Hanson, of Salt Lake City, for respondent.

WOOLLEY, District Judge. GIDEON, C. J., and FRICK and CHERRY, JJ., concur. Term of office of Hon. A. J. WEBER, who was Chief Justice, expired before disposition of this case. THURMAN, J., did not participate.


WOOLLEY, District Judge.

In this case an opinion affirming the judgment of the district court was handed down on February 11, 1925. Appellants in due time filed separate petitions for rehearing upon various grounds; the principal ones being that the complaint does not state facts sufficient to constitute a cause of action, and that the court erred in holding that the appellants had waived any rights by producing certain evidence on their behalf and by other conduct referred to in the opinion.

In the original opinion the court did not pass directly upon the question as to whether the complaint stated a cause of action or not, but held that appellants had supplied the omissions, if any there were, by producing evidence and by other conduct set forth in the opinion.

After considering the arguments of counsel for appellants in support of their petitions for rehearing, and after again carefully going over the original briefs filed by appellants, together with the record on appeal, the court has reached the conclusion that the original opinion should be modified in certain particulars. We are, however, also of the opinion that, after such modification, the affirmance of the judgment should be adhered to and hence nothing would be accomplished by granting a rehearing. This opinion will therefore be substituted for the opinion as originally filed, and will constitute the official opinion of this court in this case, and will be published as such.

The action was instituted by the plaintiff against the sheriff of Salt Lake county, the surety on his official bond, and three of his deputies. In the complaint, after alleging the election and qualification of Benjamin R. Harries as sheriff of Salt Lake county, that the appellant Maryland Casualty Company duly qualified and was accepted as surety on Harries' official bond as sheriff, that the other appellants were the duly appointed and acting deputy sheriffs of Salt Lake county, it was in substance further alleged:

"That on the 1st day of August, A. D. 1923, plaintiff and her said family were using and occupying the said premises heretofore described, and were then in the lawful and peaceable possession of the same, and that on said day, and while in the lawful and peaceable possession of said premises, the said defendants H. H. Harries, J. W. Harris, and T. A. Callicut, acting as deputy sheriffs aforesaid and acting under the orders and directions of the said Benjamin R. Harries, sheriff of Salt Lake county aforesaid, then and there unlawfully," etc.

The complaint then, with much particularity, describes the acts, and states what was done by the deputy sheriffs in searching the house of the plaintiff, and fully and specifically alleges the effect that their acts and conduct had upon the plaintiff, and that, "by reason of the aforesaid acts of the said officers," she was caused to suffer great pain and mental anguish, etc., for which she asked to be compensated, stating the amount claimed.

Each of the appellants filed a general demurrer to the complaint. The demurrers were overruled, and the appellants filed a joint answer in which they admitted all of the allegations contained in the complaint except those relating to the alleged wrongful acts of the deputy sheriffs, and that the plaintiff was damaged in consequence of their acts, all of which they denied.

Upon the issues presented by the pleadings aforesaid, the case proceeded to trial. After plaintiff had produced some evidence relating to some preliminary matters, all of the appellants made separate objections to the introduction of any evidence upon the merits of the case, for the alleged reason that the complaint did not state facts sufficient to constitute a cause of action. The objection was overruled and the case proceeded, and, after all the evidence was produced by both sides, the case was submitted to the jury upon the instructions of the court. The jury returned a verdict against all of the defendants except one of the deputy sheriffs, who was not served with process. Judgment was entered upon the verdict. The appellants filed a motion for a new trial, which was denied. This appeal is from the judgment.

A number of errors are assigned, which, so far as deemed material, will be considered in their order.

It is again strenuously argued on behalf of appellants that the judgment should not prevail, for the reason that the complaint does not state facts sufficient to constitute a cause of action. The principal reason urged in that particular is that it is not alleged in the complaint that the acts complained of were acts that were committed by the deputy sheriffs while acting in their official capacities as officers. That is, that it is not alleged that the acts were committed either under color of office or by virtue of office.

It is true that some courts have indulged in considerable refinement in passing upon the sufficiency of the allegations of complaints where the actions were predicated upon alleged wrongful acts of executive officers, such as sheriffs and their deputies, when the sureties on the official bonds were parties defendant. In such cases some of the courts have sought to establish strict, and, what seems to us, artificial, rules in determining the sufficiency of complaints. Such, no doubt, was due to the fact that sureties on official bonds can be held liable only in cases where the officer commits a wrong while acting in his official capacity. But, even in such cases, reasonable certainty in averment should be sufficient. Where, as in the complaint in this case, the election and qualification of the officers and their titles, together with the execution of the official bonds, are clearly alleged and it is then further alleged that, while "acting" as such officers, the wrongful acts, which are fully described, were committed, and where it clearly appears from the acts described that they were such as such officers usually perform, the allegations should be sufficient. The test of the sufficiency of a complaint to withstand a general demurrer always is this: Can a complete cause of action be proved under the allegations without violating the rules of evidence relating to relevancy, etc.? It seems clear to us that, in view of all of the allegations contained in the complaint before us, proof that the deputy sheriffs acted in their official capacity in entering and searching the home of plaintiff and in doing the acts complained of was clearly admissible. True, the complaint is not a perfect pleading, and the cause of action, no doubt, is defectively stated. The allegations, when considered as a whole, however, are sufficient to withstand a general demurrer, and hence the complaint is sufficient. In the following cases complaints which, in our judgment, were quite as defective in statement as the complaint in this case, were nevertheless upheld as stating causes of action in actions against sheriffs and their sureties: Gomez v. Scanlan, 155 Cal. 528, 102 P. 12; Meek v. Tilghman, 55 Okla. 208, 154 P. 1190; Lee v. Charmley, 20 N.D. 570, 129 N.W. 448, 33 L.R.A. (N. S.) 275; and Greenberg v. People, 225 Ill. 174, 80 N.E. 100, 8 L.R.A. (N. S.) 1223, 116 Am. St. Rep. 127. Moreover, we have a statute (Comp. Laws Utah 1917, § 6610), which provides that in alleging "capacity or relation" the same may be pleaded "as a legal conclusion." By that is not meant that the official acts of an officer are not required to be proved in the usual way, but what is meant is that the allegations in the complaint, to admit proper proof that the acts complained of were official acts, need be stated in general terms merely, and to so allege them, it seems to us, is sufficient. At least they should be held sufficient as against a general demurrer and until it is made to appear that the defendant cannot intelligently answer the allegations of the complaint. If he cannot do so, he may point out the defect in the ordinary way by special demurrer and obtain the desired correction.

It is very clear from the record in this case that the appellants were not and could not have been prejudiced in preparing their defenses, nor in the trial of the case.

Having reached the conclusion that the complaint states a cause of action, this assignment cannot be sustained. Nor does the evidence leave any room for doubt that the deputy sheriffs acted in their official capacities when committing the alleged wrongful acts complained of, and the jury were fully justified in awarding damages to the plaintiff.

Ordinarily, there should not be much difficulty in determining when an officer acts in his official capacity and when he acts merely in an individual capacity. In 24 R. C. L. 965, § 59, the law is clearly and tersely stated in the following words:

"The test should be: Would he have acted in the particular instance, if he were not clothed with his official character or would he have so acted if he were not an officer? If he assumed to act as an officer--whether under valid or void process or under no process...

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    ...law. See Cornwall v. Larsen, 571 P.2d 925, 927 (Utah 1977); Benally v. Robinson, 14 Utah 2d 6, 376 P.2d 388 (1962); Jackson v. Harries, 65 Utah 282, 236 P. 234 (1925); Geros v. Harries, 65 Utah 227, 236 P. 220 (1925); see also Payne v. Myers, 743 P.2d 186 (Utah 1987); Frank v. State, 613 P.......
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