Jones v. Buckelew

Decision Date31 January 1946
Docket Number6 Div. 346.
PartiesJONES et al. v. BUCKELEW.
CourtAlabama Supreme Court

Rehearing Denied March 7, 1946.

London & Yancey, of Birmingham, for appellants.

Francis H. Hare, of Birmingham, for appellee.

FOSTER Justice.

This is a suit against a deputy sheriff and his official bond for negligently inflicting personal injuries on plaintiff by negligently causing or allowing an automobile of which he was in charge to run against plaintiff, at a time when he was 'acting within the line and scope of his authority and under color of his office as such deputy sheriff.'

This is a count in tort against both the deputy and the surety on his official bond in line with our cases. Shell v Pittman, 229 Ala. 380, 157 So. 205 (limiting Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794); Hill v. Hyde, 219 Ala. 155, 121 So. 510; Holland v Fidelity & Deposit Co., 225 Ala. 669, 145 So. 131.

The bond of the deputy was made under the Act approved September 10, 1915, General Acts 1915, p. 382. The question here is not affected by the Local Act of September 14, 1915, Local Acts 1915, p. 374. Henry v. Wiggins, 207 Ala. 251, 92 So 108.

Our attention has not been called to any reason why the Act of September 10, 1915, supra, does not here have application, or that it has been repealed or amended. We therefore indulge the presumption that it is still in effect, though we do not find where it was incorporated in the Code of 1923, or that of 1940. See, American Surety Co. v. O'Hara, 232 Ala. 616, 169 So. 229.

A bond intended to be the official bond of a public officer when he acts under it, and it was delivered as such, is in legal effect payable and conditioned as required by law, and has the effect of imposing such obligations as so required by the statute. Sections 51 and 52, Title 41, Code.

Every official bond is obligatory on the principal and sureties. '3. For the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office as by his failure to perform, or the improper or neglectful performance of those duties imposed by law.' Section 50, Title 41, Code; Mobile County v. Williams, 180 Ala. 639, 61 So. 963. It is the duty of the sheriff and deputies 'to ferret out crime.' Section 5(4), Title 54, Code.

On the occasion in question, appellant Jones was not on duty as deputy sheriff at the courthouse but was at home when he received word that someone might give him some information in reference to a crime. He responded to the call and went to interview the person and secure the information with respect to the commission of a crime. As he was so proceeding, rapidly driving an automobile belonging to the county, he caused it to run into the rear of a car stopped on the highway ahead of him, pointing in the same direction, and caused plaintiff's injuries.

There was a judgment for plaintiff, and both defendants appeal. The brief for appellants admits that the evidence was such as that the jury could find against Jones on the charge of negligence, but insists that it is not such a situation as that the wrongful act, (if done at all) was committed 'under color of his office' or by reason of a 'failure to perform, or the improper or neglectful performance of those duties imposed by law,' as set forth in section 50, Title 41, Code.

The deputy was seeking no information from plaintiff in respect to the crime, and had no official business with him. Plaintiff was simply another casual traveler upon the same highway.

The question is whether or not the deputy committed the wrongful act under color of his office or in the negligent performance of the duties of his office.

Appellant's argument is that the act here in question was not done by reason of any official service being rendered. In doing the wrongful act it is contended he merely used the highway as an individual, not an officer. In striking plaintiff with the car, it is contended, he was not doing an act under color of office or in discharge of his duties as an officer. The contention is supported by authority. Culpepper v. United States F. & G. Co., Ga.Sup., 33 S.E.2d 168; Nelson v. Bartell, 4 Wash.2d 174, 103 P.2d 30; Usrey v. Yarnell, 181 Ark. 804, 27 S.W.2d 988; Gray v. De Bretton, 192 La. 628, 188 So. 722; AEtna C. & S. Co. v. Clark, 136 Tex. 238, 150 S.W.2d 78; Ivy v. Osborne, 152 Tenn. 470, 279 S.W. 384, 385.

Other states have taken a different view, and hold that the principal and surety are liable under such circumstances. Fidelity & Casualty Co. v. Boehnlein, 202 Ky. 601, 260 S.W. 353; United States F. & G. Co. v. Samuels, 116 Ohio St. 586, 157 N.E. 325, 53 A.L.R. 36.

In states holding that he is not on official business, no reference is made to a statute requiring him to ferret out crime as in Alabama. His duty in this respect is similar to that of a policeman.

'Color of his office,' as used in the statute, and in fact the whole form of that clause, has been in our Code a long time. Color of his office was defined in McElhaney v. Gilleland, 30 Ala. 183, as to 'extend the remedy beyond those cases in which a wrong is done in discharge of the legitimate duties of the office, to those in which a wrong is done under color of office,' that is, 'under the pretended authority of his office.' Mason v. Crabtree, 71 Ala. 479, 481; Mobile County v. Williams, 180 Ala. 639, 61 So. 963.

As applied to the present situation, it is not material whether the deputy was on duty or not on duty in the sense of his relation with the sheriff and the county as affecting his salary, etc., but if he was acting under pretense of the authority of his office as deputy sheriff, it would be the same as if such authority in fact existed. And it would make no difference whether he was in fact performing a duty imposed by law, if he was pretending to do so.

But it was his duty imposed by law to ferret out crime in his county, as we have shown. When he was seeking information or undertook to do so, he was engaged in a duty imposed by law; certainly he was acting under such a pretense. In the case of Union Indemnity Co. v. Webster, supra, the court held that if a deputy sheriff in making an arrest for operating a still used more force than was reasonably necessary, plaintiff would be entitled to recover, if he was acting as deputy sheriff and under color of his office. National Surety Co. v. Boone, 227 Ala. 599, 151 So. 447.

If the officer commit an assault and battery in furtherance of his duty to suppress crime (or to ferret crime), he...

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  • Bergman v. United States
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    • U.S. District Court — Western District of Michigan
    • May 28, 1983
    ...See also Roberts v. State, 258 Ala. 534, 63 So.2d 584 (1953). This duty is similar to that required of a policeman. Jones v. Buckelew, 247 Ala. 475, 25 So.2d 23 (1946); Roberts v. State, Since Alabama negligence law allows individuals to sue for breach of a law enforcement officer's duty an......
  • Roberts v. State
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    ...statutory duty of the sheriff and his deputies, among other things, 'to ferret out crime'. Section 5, Title 54, Code; Jones v. Buckelew, 247 Ala. 475(6), 25 So.2d 23. The deputy sheriff was called upon by the wife of one of the participants 'to come out there and make them behave'. The offi......
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    ...v. Kinney, 119 Neb. 478, 229 N.W. 894; Fidelity & Casualty Co. of N. Y. v. Boehnlein, 202 Ky. 601, 604, 260 S.W. 353; Jones v. Buckelew, 247 Ala. 475, 25 So.2d 23. In view of what has been said, we are of the opinion that at all times pertinent herein, defendant Phillis was acting in an off......
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    ...color of office were improper would excuse liability on the officer's official bond, it would never arise." See also Jones v. Buckelew, 247 Ala. 475, 25 So.2d 23 (1946); League v. National Surety Corp., 198 S.C. 289, 17 S.E. 2d 783 (1941); De Busk v. Harvin, 212 F.2d 143 (5th The absence of......
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