Jordan v. Neer

• Decision Date: 14 May 1912
• Docket Number: Case Number: 1672
• Citation: 1912 OK 373,34 Okla. 400,125 P. 1117
• Parties: JORDAN et al. v. NEER.
• Court: Oklahoma Supreme Court

1912 OK 373

125 P. 1117

34 Okla. 400

JORDAN et al. v. NEER.

Case Number: 1672

Supreme Court of Oklahoma

Decided: May 14, 1912

Syllabus

¶0 1. SHERIFFS AND CONSTABLES--Official Bond--Surety's Liability. Sureties on the official bond of a sheriff are only answerable for the acts of their principal while engaged in the performance of some duty imposed upon him by law, or for an omission to perform such duty.

2. SAME--Color of Office. To constitute color of office, such as will render an officer's sureties liable for his wrongful acts, something else must be shown besides the fact that in doing the act complained of the officer claimed to be acting in an official capacity. If he is armed with no writ, or if the writ under which he acts is utterly void, and if there is at the time no statute which authorized the act to be done without process, then there is no such color of office as will enable him to impose a liability upon the sureties on his official bond.

3. SAME--Misconduct of Deputies--Sheriff's Liability. Where plaintiff's husband was shot and killed by deputy sheriffs, and the shooting was not justifiable under the circumstances, but constituted a trespass for which the deputies would be answerable in damages, the sheriff would also be liable as an individual participant in the affair, if he was present, aiding, assisting, abetting, or encouraging.

John E. Palmer, J. R. Charlton, and Montgomery & O'Meara, for plaintiffs in error.

Chas. W. Pennel and F. J. Oyler, for defendant in error.

BREWER, C.

¶1 This is a suit against the sheriff of Washington county, two of his deputies, and the sureties on his official broad. It was brought by Pauline Neer, as widow of John Neer, deceased, to recover for the alleged wrongful death of her husband at the hands of the sheriff, John D. Jordan, and his deputies, R. S. Duke and John C. Vann. It was tried in the district court of Washington county on September 27, 1909, and resulted in a verdict and judgment of $ 2,500 against all of the defendants, except one of the bondsmen, for whom the court directed a verdict. The portion of the petition intended to show liability upon the part of the defendants, including the sureties on the official bond, is as follows:

"Plaintiff further states that on the 20th day of January, 1909, at about 11 o'clock p.m. of said date, the deceased, John Neer, was legally, lawfully, and peaceably traveling along and on the public highway on West Third street, in Bartlesville, Washington county, Oklahoma, and at a point on said West Third street just beyond Ione avenue, in said city aforesaid; that the defendants, John D. Jordan, John C. Vann, and R. S. Duke, did, while making a raid on the joints in said West Bartlesville, Oklahoma, and while on duty and acting in their official capacity as sheriff, deputy sheriff, and undersheriff of said county and state, together and acting in concert, wantonly, willfully, carelessly, negligently, recklessly, unlawfully, and maliciously fire off and discharge their revolvers, which were then and there loaded with powder and leaden balls, at and into the back and body of him, the said John Neer, and from the effects of said wounds thus received he, the said John Neer, then and there died; and that the said John Neer did not in any manner whatsoever contribute to said injury aforesaid."

¶2 The defendant Jordan answered by general denial; and, further, that he had nothing to do, or connection with, the killing; and that if Duke and Vann, or either of them, did in fact do the killing, that it was done in self-defense. Duke and Vann answered, admitting that they were present and participated in the shooting melee during which Neer lost his life, but that they and each of them acted only in his necessary self-defense. The sureties on the bond denied liability, and set up the special defense of an alteration of the instrument, through the striking out of the name of one bondsman and substituting that of another person, after the bond had been approved and filed. At the beginning of the trial, the defendants objected, each for himself, and the bondsmen for themselves, to the introduction of any evidence under the petition. At the close of plaintiff's evidence, the defendants, each for himself, and the bondsmen for themselves, demurred to the evidence and moved for an instructed verdict. These being overruled and exceptions saved, the defendants introduced their testimony. A number...