Jacobson v. McMillan

• Decision Date: 02 January 1943
• Docket Number: 7065,7066
• Citation: 64 Idaho 351,132 P.2d 773
• Parties: MARTIN JACOBSON, Appellant, v. S. J. MCMILLAN, THE AETNA CASUALTY AND SURETY COMPANY, a corporation, JAMES O. CROMWELL and NATIONAL SURETY CORPORATION, a corporation, Respondents. GEORGE SABLACK and ANNA SABLACK, Appellants, v. S. J. MCMILLAN, THE AETNA CASUALTY AND SURETY COMPANY, a corporation, JAMES O. CROMWELL, and NATIONAL SURETY CORPORATION, a corporation, Respondents
• Court: Idaho Supreme Court

132 P.2d 773

64 Idaho 351

MARTIN JACOBSON, Appellant, v. S. J. MCMILLAN, THE AETNA CASUALTY AND SURETY COMPANY, a corporation, JAMES O. CROMWELL and NATIONAL SURETY CORPORATION, a corporation, Respondents.

GEORGE SABLACK and ANNA SABLACK, Appellants, v. S. J. MCMILLAN, THE AETNA CASUALTY AND SURETY COMPANY, a corporation, JAMES O. CROMWELL, and NATIONAL SURETY CORPORATION, a corporation, Respondents

Nos. 7065, 7066

Supreme Court of Idaho

January 2, 1943

SHERIFFS AND CONSTABLES-LIABILITY FOR VIOLATION OF DUTY.

1. In cases of personal injury, the law looks to the proximate and not the remote cause.

2. Where sheriff delivered husband, who had been committed for assault, to superintendent of state hospital for observation and superintendent by alleged neglect permitted husband to escape, and husband assaulted one employed by wife partially to protect her against husband, "proximate cause" of such person's injuries was his acceptance of employment with knowledge of husband's intention to shoot wife and whoever should attempt to protect her, and hence alleged neglect of duty by sheriff and superintendent was merely "remote cause" and they and their sureties were not liable.

3. Where commitment required sheriff to keep prisoner safely until ordered otherwise by the court, it was also sheriff's duty to safeguard prisoner and protect his mental and physical health so far as possible. (I.C.A., sec 19-4215.)

4. The duties of a peace officer who has custody of a prisoner are twofold, to the public and to the prisoner, and officer owes no more duty to one member of the public than to another. (I.C.A., sec. 19-4215.)

5. The public's right against sheriff violating his duty to keep a prisoner does not inure to individuals, but must be exercised by prosecutor or a proper party on behalf of the state. (I.C.A., secs. 19-4201 to 19-4215.)

6. An individual may have a civil action against officer for failure to serve civil or quasi-civil process or for malfeasance or misfeasance in discharge of his official duty in execution of civil process coming into his hands.

7. In actions against sheriff and superintendent of state hospital and their sureties for injuries and death caused by assault by escaped prisoner, allegedly resulting from sheriff's neglect of duty in delivering committed prisoner to superintendent, and superintendent's neglect in permitting prisoner to escape, complaints were insufficient to show that conduct of sheriff and superintendent was "wanton," meaning reckless disregard for the safety of others. (I.C.A., secs. 19-4201 to 19-4215; Sess. Laws, 1939, chap. 151, sec. 1.)

8. In actions against sheriff and superintendent of state hospital for injuries and death caused by assault by escaped prisoner allegedly resulting from sheriff's neglect of duty in delivering prisoner to superintendent and superintendent's neglect in permitting prisoner to escape where there was an utter failure to charge sheriff and superintendent as joint tort-feasors, there was no authority for joining sheriff and superintendent as defendants.

9. Sureties of sheriff and superintendent of state hospital are not liable if their principals are not liable.

Appeals from the District Court of the First Judicial District, for Shoshone County. Hon. A. L. Morgan, presiding judge.

Separate actions for damages, for injuries to plaintiff (Jacobson) and for death of plaintiff Sablack's son. Judgments for defendants. Affirmed.

Judgment affirmed. Costs to respondents.

W. F. McNaughton, Wm. S. Lee and J. H. Felton for appellants.

A sheriff or other public official may be held liable for negligence in the performance of his duty. (Helgeson v. Powell, 54 Idaho 667; Falasco v. Hulen, 44 P.2d 469 (Cal. App.); Mitchell v. Hughes, 176 P. 26 (Wash.)

A sheriff who negligently permits an insane prisoner to do harm to another is liable. (Kusah v. McCorkle, 170 P. 1023 (Wash.)

The superintendent of an insane asylum owes a duty to the members of the general public not to permit a dangerous lunatic to be at large, for the violation of which he is liable for damages proximately resulting. (Austin W. Jones Co. v. State, 119 A. 577 (Me.)

The surety on the official bond of a public officer is liable for wrongful acts of the officer whether performed while he was acting by virtue of his office or under color of office. The test is whether the defendants would have acted as they did had they not been public officers. (Helgeson v. Powell, 54 Idaho 667; Grayson v. Linton, 125 P.2d 318 (Idaho)

Whitla & Knudson and J. Ward Arney for respondents.

An action by or for the benefit of a private individual cannot be maintained against a sheriff or his surety unless it is shown that the officer violated a duty which he owed specially to the plaintiff. The obligation of a sheriff, in the handling of a prisoner is two-fold--to the state to produce him when required, and to the prisoner to keep him in health and safety. (Worden v. Witt, 4 Idaho 404; Kusah v. McCorkle, 170 P. 1023; State v. Stout, 59 N.E. 1901; McPhee v. United States Fidelity & Guaranty Co., 100 P. 174; City of Eaton Rapids v. Stump, 86 N.W. 438.)

AILSHIE, J. Holden, J., and Johnson, D. J., concur. GIVENS, C. J., Budge, J., concurring in part and dissenting in part.

OPINION

AILSHIE, J.

In July, 1940, Grace Wark O'Connor was living separate from her husband, Dan O'Connor, at Rathdrum. Being apprised of her husband's intention to shoot her and other members of her family, Mrs. O'Connor took refuge in the residence of C. F. Hess. While attempting to protect Mrs. O'Connor, Hess was assaulted by O'Connor discharging a loaded gun at him. August 10, 1940, Hess filed a criminal complaint against O'Connor and the latter was arrested by Sheriff McMillan and taken before the probate judge of Kootenai county. After a preliminary hearing, August 27th, and by regular commitment, O'Connor was taken into custody and confined in the county jail. September 7th, information, charging O'Connor with assault by a deadly weapon, was filed in the district court by the prosecuting attorney; no trial was held and no bond furnished for O'Connor's release; and the order of commitment has never been rescinded nor had O'Connor been legally discharged. It appears that O'Connor was suffering from a mental and physical disease known as paresis, which "rendered him mentally deranged and dangerously insane."

September 25, 1940, Sheriff McMillan caused a deputy to take the prisoner out of the county and deliver him to defendant Cromwell, as superintendent of the State Hospital South at Blackfoot; that Superintendent Cromwell undertook to detain the prisoner, to make observations as to his mental and physical condition, and to return him to Sheriff McMillan. The material charging part of the complaint is set out at length in the footnote. ^[1]

Plaintiff Jacobson was employed by Mrs. O'Connor to perform manual labor "and, as said Dan O'Connor well knew, to furnish her and her family with protection against the said Dan O'Connor." May 3, 1941, O'Connor, having secured a 12-gauge shotgun, proceeded to the residence of his wife and her family near Cataldo, Shoshone county, and began shooting, thereby wounding Jacobson and causing him pain and suffering, and killing John Sablack.

Two separate actions were filed April 10, 1942: One by plaintiff Jacobson, praying for damages against defendants, S. J. McMillan and his surety, Aetna Casualty and Surety Company, and James O. Cromwell, superintendent of the State Hospital South, and his surety, National Surety Corporation, for wounds and injuries to plaintiff as the proximate result of negligence by the sheriff and superintendent, and violation of the order of commitment of said O'Connor; the other action was for the killing of Sablack under the same circumstances and at the same time and place as Jacobson was injured.

Separate demurrers were filed by each of the parties to amended complaints. Demurrers were both general and special, alleging (1) that facts stated do not constitute a cause of action; (2) that there was a misjoinder of parties defendant; (3) that the complaint was ambiguous, indefinite, and uncertain; and further setting out special defects directed to the insufficiency of the complaint.

The court entered separate orders July 2, 1942, sustaining the demurrers and giving plaintiff ten days to further plead or amend the complaint. Thereafter, on application of counsel for defendants, plaintiff having failed to file an amended complaint or to further plead in the action, judgment of dismissal with prejudice was entered. From the judgments of dismissal and from the orders sustaining demurrers, this appeal is taken.

An analysis of paragraph 10 of appellant's complaint convinces us that appellant undertook, for hire, the risk, from the results of which he now complains. He alleges:

"That the plaintiff was at all times mentioned herein an employee of said Grace Wark O'Connor and that his duties were to perform manual labor for the said Grace Wark O'Connor and, as said Dan O'Connor well knew, to furnish her and her family with protection against the said Dan O'Connor."

The foregoing is immediately followed by the allegation: "That, as a proximate result of the negligence and violation of the order of commitment hereinbefore referred to, . . . . the said Dan O'Connor, acting under insane and uncontrollable impulses, possessed himself of a shotgun and proceeded to the residence of Grace Wark O'Connor . . . . and began to shoot at them, and did, with said shotgun, at such time and place shoot the plaintiff."

It is clear from the complaint, that appellant was apprised and knew of O'Connor's affliction with homicidal insanity; and that he knew that O'Connor was ...