Johnson v. Williams' Adm'r

• Decision Date: 14 June 1901
• Citation: 111 Ky. 289,63 S.W. 759
• Parties: JOHNSON et el. v. WILLIAMS' ADM'R. [1]
• Court: Kentucky Court of Appeals

63 S.W. 759

111 Ky. 289

JOHNSON et el. v. WILLIAMS' ADM'R. ^[1]

Court of Appeals of Kentucky.

June 14, 1901

Appeal from circuit court, Hickman county.

"To be officially reported."

Action by the administrator of C. B. Williams against T. H. Johnson and others on an official bond. Judgment for plaintiff, and defendants appeal. Affirmed.

J. C Flournoy, Robertson & Thomas, and R. T. Tyler, for appellants.

John W Ray and Shelbourne & Kane, for appellee.

PAYNTER C.J.

This action was instituted by the appellee against the appellant T. H. Johnson, sheriff, and the sureties in his bond, for the alleged negligent killing of the intestate, Charles Williams by two of his deputies. Dave Browder murdered a negro. Ernest Johnson and H. C. Judge were deputies under Johnson, and were sent to arrest him for the crime which he had committed. They went to Casye, a small village, where Browder seems to have lived, with the view of accomplishing his arrest. It was there ascertained that he had gone to Moscow, a near-by village, to see his father, as he said he would not surrender until he had a consultation with him. It was thought probable that he would return to Casye. So the parties started in the nighttime, with the view of apprehending him. Johnson and Judge went to a point where the Moscow road crosses another one. Shortly after reaching that crossing two men were discovered approaching in a buggy, leading behind them a gray horse. The deputies had been informed that Browder was riding a gray horse, and they also claim that they thought they recognized the voice of one of the parties as being his. The deputies claim they halted them as they approached, and, instead of stopping the speed of the horse, they increased it, and after the buggy had passed them they fired, with the intention of preventing Browder's escape. It turned out that he was not in the buggy, but a young man by the name of Campbell, and with him was Charles Johnson. One shot took effect in Johnson's head, from which he shortly thereafter died. Campbell testified that as soon as the deputy sheriffs cried "Halt" he hollowed "Whoa" to his mare, and about that time the deputies began to fire on them. There is also some testimony tending to show that the ball which killed Johnson entered his forehead. The whole defense is based upon the idea that the deputy sheriffs had the right, if it was necessary to do so to prevent Browder's escape, to kill him; that, as they had probable cause for believing that he was one of the occupants of the buggy, they therefore had the right to shoot, and, if in doing so they killed Johnson, there is no more liability than there would have been had Browder been killed. The case was tried, at the instance of the defendants, upon the theory that they had the right to kill Browder under the circumstances detailed by them, and that there is no more liability created for the killing of Johnson than there would have been had they killed Browder. It is not denied that the deputies were acting virtute officii, as the defendants sought to escape liability upon the grounds that they were so acting, and that they had acted properly. It is not claimed that the killing was colore officii. In the court below both the plaintiff and defendants endeavored to try, and did try, the case upon the theory that an officer has the right to shoot one charged with felony, to prevent his escape.

The opinions of courts and the writers upon criminal law recognize the rule to be that an officer has the right to shoot one charged with a felony, to prevent him from escaping. It was so held by this court in Head v Martin, 85 Ky. 480, 3 S.W. 622. But we do not decide whether or not the deputies would have been authorized, in law, to have shot Browder, had he been in the buggy, attempting to prevent arrest by fleeing. Whether fleeing under such circumstances is such an escape, in the meaning of the law, as would authorize officers who have a warrant of arrest for one on a charge of felony to shoot him, we do not decide. Courts recognize the rule to be that if a process is put in the hands of an officer to execute against B., and he seizes the goods of A. under it, he is liable on his official bond to A. for damages. Town of Norwalk v. Ireland, 68 Conn. 1, 35 A. 804; Norris v. Mersereau, 74 Mich. 689, 42 N.W. 153; Welter v. Jacobson, 7 N. D. 32, 73 N.W. 65. It was held in Lammon v. Feusier, 111 U.S. 17, 4 S.Ct. 286, 28 L.Ed. 337, that the taking by a marshal of the United States, upon a writ of attachment against one person, of the goods of another, is a breach of the condition of his official bond, for which his sureties are liable. It has been held that an illegal arrest is a breach of a bond to faithfully and without oppression discharge all duties required by law. Yount v. Carney, 91 Iowa 559, 60 N.W. 114. It was held in West v. Cabell, 153 U.S. 78, 14 S.Ct. 752, 38 L.Ed. 643, that a warrant to arrest James West for murder will not authorize the marshal to arrest Vandy M. West, and for the arrest and imprisonment of the latter on such warrant by one of his deputies the marshal and his sureties are liable upon his official bond. Murfree, Sher. § 60, says: "On the common-law principles governing the ordinary relations of principal and agent, a sheriff would not be responsible for an act done by his deputy colore officii; but it is held in Virginia and West Virginia that on principles of public policy, applying to the relation of a sheriff and his deputy, the former is liable in such a case; and, on the same principle, it would seem that he and his sureties are liable on his official bond. In a Massachusetts case (Knowlton v. Bartlett, 1 Pick. 273) the court says: 'If the act from which the injury resulted was an official act, the authorities are clear that the sheriff is answerable. If it was not an official, but a personal, act, it is equally clear that he is not answerable. But an official act does not mean what a deputy might lawfully do in the execution of his office. If so, no action could ever lie against the sheriff for the misconduct of his deputy. It means, therefore, whatever is done under color or by virtue of his...