Jones v. Van Bever

• Decision Date: 26 March 1915
• Citation: 164 Ky. 80,174 S.W. 795
• Parties: JONES v. VAN BEVER ET AL.
• Court: Kentucky Court of Appeals

174 S.W. 795

164 Ky. 80

JONES v. VAN BEVER ET AL.

Court of Appeals of Kentucky.

March 26, 1915

Appeal from Circuit Court, Bell County.

Action by Bige Jones against Robert Van Bever and others. From a judgment of dismissal, plaintiff appeals. Affirmed.

Carroll and Hannah, JJ., dissenting.

Patterson & Ingram, of Pineville, for appellant.

Chas I. Dawson, of Pineville, for appellees.

MILLER C.J.

This appeal is presented from a judgment sustaining demurrers to the two paragraphs of the petition, and dismissing it upon plaintiff's failure to amend. At the times mentioned in the petition, the appellee Robert Van Bever was sheriff of Bell county, and J. F. McCoy and A. V. Haynes were his regularly appointed deputies.

After reciting the qualification of Van Bever as sheriff, and the appointment and qualification of McCoy and Haynes as his deputies, the first paragraph of the petition reads as follows:

"Plaintiff further states that said deputy sheriffs, in July or the 1st of August, 1913, in their official capacity, as aforesaid, and by virtue of their said office as deputy sheriff, at Arjay, in Bell county, Ky. did unlawfully and without warrant or process from any court and without reason to believe that plaintiff had committed a felony and when he had committed no offense in their presence arrest the plaintiff at said place in the presence of divers and sundry people, and then and there, by virtue of their said official capacity, did forcibly and unlawfully, and against the will and consent of the plaintiff, drag and force him to enter a train and go with them from said place to Pineville, Ky. and there, in the presence of divers and sundry people, they took him into the presence of Charles I. Dawson, county attorney, where, by advice of said county attorney, they released the said plaintiff, and by said acts the said plaintiff was greatly humiliated and caused to suffer great mental anguish and distress, all to his damage in the sum of $1,000."

The second paragraph of the petition, as amended, is a substantial copy of the first paragraph above set out, except that it sets up and relies upon a second arrest made by McCoy and Haynes in August or September, 1913; and that, instead of being released, plaintiff was delivered to one Yeary for the purpose of being transported by Yeary into the state of Tennessee, against plaintiff's will and consent.

The trial judge sustained the demurrers and dismissed the petition, upon the theory that it showed the deputy sheriffs were acting without any authority of law when they arrested the plaintiff; and that they were doing something not required of them in the performance of their duties as officers. Moreover, some stress is laid upon the fact that it is shown by the second paragraph of the petition that the plaintiff was not arrested for any violation of the laws of the state of Kentucky, and that, if he was arrested for any offense, it was for an offense committed in the state of Tennessee. The suit is against the sheriff, only.

The sole question, therefore, for decision in this case, is: Was the action of the deputy sheriffs, in arresting Jones at a time when he had committed no offense in the presence of the deputy sheriffs, and when they had no warrant for his arrest, and no reasonable ground to believe he had committed a felony, such an official act of the deputies as made their principal liable therefor in damages?

The official bond of the sheriff, given under section 4556 of the Kentucky Statutes, provides, among other things, that he "shall by himself and deputies, well and truly discharge all the duties of said office," while section 4558 of the Kentucky Statutes provides that the sheriff's official bond "may be put in suit, from time to time, at the cost of any person injured by the acts or omissions of the sheriff or any of his deputies." By section 4560 of the Kentucky Statutes it is further provided:

"Every sheriff may, by and with the approval of the county court, appoint his own deputies, and may revoke the appointment at his pleasure. Before any deputy shall proceed to execute the duties of his office he shall take the oath required to be taken by the sheriff."

The gist of the ruling of the trial court was that the acts of the deputies, as set forth in the petition, were not official acts; that their principal, the sheriff, was not responsible for the acts of his deputies that were not done in their official capacity or by virtue of their said office; and that the acts complained of were not done in their official capacity, or under color of their office, or by virtue thereof. And, although the petition is careful to say the arrests were made by Haynes and McCoy in their official capacities as deputy sheriffs, the trial court held, and we think properly, that the subsequent allegations as to the manner and occasion of the arrests effectually negatived the former allegation by showing that the arrests were not made by the deputies in their official capacities or by virtue of their office. No judgment is asked against the sureties on the sheriff's bond.

The cases in which an officer may make an arrest are specified by section 36 of the Criminal Code of Practice, as follows:

"A peace officer may make an arrest--1. In obedience to a warrant of arrest delivered to him. 2. Without a warrant, when a public offense is committed in his presence, or when he has reasonable grounds for believing that the person arrested has committed a felony."

See, also, Madden v. Meehan, 151 Ky. 220, 151 S.W. 681.

If he makes an arrest in any other way, it is not authorized by law, and is consequently his individual and not his official act.

The allegation that the arrests were made by the deputies in their official capacities is a mere legal conclusion or inference, and adds nothing to the petition. This question was passed upon by this court in Commonwealth v. Cole, 7 B. Mon. 250, 46 Am.Dec. 506, which was an action against a constable and his sureties to recover for alleged breaches of the official bond of the constable. In that case the court said:

"The first breach is that 'the relator was compelled to pay to said Cole the sum of $95, which Cole, by color of his office as aforesaid, wrongfully collected from the said Richardson and refused to account for,' etc. There being no allegation of fact to aid the general phrases used in this statement, we are clearly of opinion that it is too vague and indefinite to answer the purpose of a declaration. It does not appear how the relator was compelled to pay, nor what was the particular act complained of, and the statement furnishes to the court no means of determining whether the collection was by color of office or not. Nor does it furnish to the defendants the requisite information of the charge or complaint relied on. It is a mere statement of legal conclusions or inferences, without the facts on which they are founded, and was properly adjudged insufficient."

The question again arose in Hawkins v. Thomas, 3 Ind. App. 399, 407, 29 N.E. 157, which was a suit against a United States marshal, and the sureties upon his bond, for an alleged illegal arrest by a deputy marshal. In speaking of the question of pleading before us, the court said:

"In the complaint in the case before us, the only allegation upon this subject is the general averment that the marshal and his alleged deputy were acting illegally, but under color of office. It does not appear that any writ or process of any kind had issued to either of them, or that any offense had been committed against the federal laws, or that they ever claimed such to be the case. The averment that the officer was acting under color of authority is a mere conclusion, and is not sufficient to show that the injury resulted from an official act. It was so decided in Commonwealth v. Cole, 7 B. Mon. 250 [[, and in speaking of the legal effect of such general averment the court said: 'It is a mere statement of legal conclusions or inferences, without the facts on which they are founded, and was properly adjudged insufficient.' So, in our own state, the rules of pleading require that facts be particularly alleged which show that the injury complained of was the result of official misconduct. State ex rel. v. Shackleford, 15 Ind. 376; Major v. State ex rel., 8 Blackf. 71; Jones v. State ex rel., 5 Blackf. 492. Indeed, an examination of the many cases decided by our Supreme Court upon the question of official responsibility shows the uniform practice to be to specifically plead facts, imposing a duty upon the officer to act, as furnishing the only basis of the liability of the surety."

In Eaton v. Kelly, 72 N.C. 110, a sheriff represented that he had an execution authorizing him to sell certain real estate, and assumed to sell the same thereunder, in regular manner, at the courthouse door. An attendant at the sale, relying upon the sheriff's representation concerning his authority, bought the property and paid for it. In fact, the sheriff had no execution, and the sale was void, and the purchaser sued him upon his bond to recover the money paid by him; but the court held that the sheriff acted without authority of law in selling the property, and the wrong could not be redressed in an action upon his bond. The same principal was applied, under somewhat similar circumstances, in Jewell v. Mills, 3 Bush, 62.

In considering a case of this character, we should not overlook the fact that, while the deputy is personally liable for any misconduct of which he may be guilty, his principal, the sheriff, is only liable when the deputy acts officially, for and on behalf of his chief. This idea was well expressed by Chief Justice Marshall, speaking for the court, in Commonwealth v....