Kusah v. McCorkle

• Decision Date: 14 February 1918
• Docket Number: 14462.
• Citation: 100 Wash. 318,170 P. 1023
• Court: Washington Supreme Court
• Parties: KUSAH v. McCORKLE et al.

170 P. 1023

100 Wash. 318

KUSAH v. McCORKLE et al.

No. 14462.

Supreme Court of Washington

February 14, 1918

Action by Fred Kusah against Fred W. McCorkle, as sheriff of Thurston county, the Fidelity Deposit Company of Maryland and Ernest Reisch. From a judgmnt for plaintiff against all defendants, they appeal. Judgment reversed, and cause remanded for new trial.

Bates &amp Peterson, of Tacoma, and Geo. F. Yantis and Troy &amp Sturdevant, all of Olympia, for appellants.

Elias A. Wright and Sam A. Wright, both of Seattle, and E. N. Steele, of Olympia, for respondent.

HOLCOMB J.

While respondent was lawfully incarcerated in the Thurston county jail in the custody of the sheriff and his deputies, on May 9, 1917, he was attacked, cut, and stabbed with a knife by a man named Reisch, then confined in the same jail and custody under the charge of insanity lodged against him by the county attorney on May 6, 1917. Reisch was delivered by the chief of police of Olympia into the custody of Gifford, deputy sheriff and jailor during the absence of his principal, Sheriff McCorkle. During the three days Reisch was in jail prior to the affray he was quiet and peaceable, and showed no signs of insanity, and the same was true during the preceding night while he was in custody of the chief of police. It appears that Reisch was not searched when taken into custody by the deputy sheriff, and when the affray took place he was found in possession of a knife with which he inflicted the injuries. Reisch was confined in the main room of the jail with Kusah and several others. The affray took place about 1 o'clock on the morning of May 9th. Respondent alleged in his complaint that he was stabbed by Reisch in the right arm at the elbow, with several other slight stabs, cuts, or scratches, and that the stab in the elbow caused the musculospiral nerve to be severed, which produced a paralysis of the wrist, causing the wrist to drop down, and the condition called 'wrist drop.'

The negligence charged by the complaint against the sheriff and his surety consisted of the sheriff's receiving into the jail where the respondent was kept a dangerously insane person, and carelessly and negligently placing the insane person in a cell occupied by respondent, and carelessness and negligence on the part of the sheriff in not searching the insane man and taking from him his weapons.

The sheriff, his surety, and Reisch, the insane man, were all sued by respondent, and the trial court gave appropriate instructions to the jury in order to separate the liability of the sheriff and his surety from that of the defendant Reisch. It is apparently conceded that Reisch, though insane, was liable for such tort as he was alleged to have committed upon respondent in this case. The court so submitted the case to the jury, and we think properly. 14 R. C. L. 596, § 51.

Upon the submission of the case to the jury they attempted to return a remarkable series of verdicts. They first brought in a verdict for $1,000 in favor of respondent, segregating the same into a verdict for $500 against the bonding company, $400 against the sheriff, and $100 against Reisch. The court refusing to accept this verdict, after some explanation as to the meaning of the instructions separating the liability of the sheriff and the surety from that of defendant Reisch, they again deliberated and returned a verdict of $666.66 against the bonding company and $333.34 against McCorkle and Reisch, which verdict was also refused by the court. The jury were ordered to again deliberate, and thereafter they returned with a verdict of $1,000 against all of the appellants. This verdict was entered. Appellants moved for judgment notwithstanding the verdict and for a new trial, which were denied, and judgment was entered against appellants and each of them in the sum of $1,000. A motion had been made by appellants and each of them at the close of respondent's case to direct a verdict on any judgment for appellants, which was denied.

Appellants make the following claims of error: (1) That the verdict of the jury and the judgment thereon are not sustained by the evidence; (2) that the negligence, if any, was the contributory negligence of respondent; (3) that the injuries suffered by respondent, if any, resulted through the unauthorized act of a deputy in placing the insane suspect in jail and holding him there without a warrant or process and without the knowledge of the sheriff, and as a consequence thereof no legal liability attaches to the defendant sheriff or his surety; (4) if an act of the deputy was an act within his official duties, it was one resting within his discretion, and the court is precluded from reviewing the discretionary action of the sheriff as to the manner of the performance. We shall discuss these contentions in reverse order.

The principal question to be determined is whether or not the sheriff is answerable civiliter for alleged negligence in the performance of his duty by himself or his depeuty, in regard to the detention of the insane suspect and the manner of his custody and failure to search him upon receiving him. Our statute (section 8499, Rem. Code) provides:

'The sheriff, or in case of his death, removal, or disability, the person appointed by law to supply his place, shall have charge of the county jail of his proper county and of all persons by law confined therein, and such sheriff or other officer is hereby required to conform in all respects to the rules and directions of said judge above specified, or which may from time to time by such judge be made and communicated to him by said commissioners.'

Section 8500, Rem. Code, provides for the keeping of a jail register by the sheriff or other officer performing the duties of a sheriff, and among other things requires that the name of each prisoner, with the date and cause of his or her commitment together with a list and value of property taken from such prisoner or delivered to the sheriff or other officer at the time of the commitment of such prisoner, shall be kept. Section 3990, Rem. Code, provides that the sheriff may provide as many deputies as he thinks proper, for whose official acts he shall be responsible to the amount of his bond, and may revoke such appointments at his pleasure, and persons may also be deputed by any sheriff in writing to do particular acts, and the sheriff shall be responsible on his official bond for the default or misconduct in office of his deputies.

These statutory provisions are but declaratory of the common law. 1 Blackstone's Commentaries, 343; South v. Maryland, etc., 18 How. 396, 15 L.Ed. 433; Ex parte Jenkins, 25 Ind.App. 532, 58 N.E. 560, 81 Am. St. Rep. 114; State of Indiana ex rel. Tyler v. Gobin (C. C.) 94 F. 48. In Ex parte Jenkins, supra, it was remarked:

'It is unnecessary to cite authorities to the effect that when a sheriff takes property of any kind into his possession by virtue of a writ, he is bound to take ordinary care of the property and prevent its deterioration or destruction, and for a failure in this regard he is liable on his bond. There certainly can be no reason for saying that his duty as to care is not at least equally obligatory in respect of a prisoner who is in his custody by virtue of his office.'

In State of Indiana v. Gobin (C. C.) 94 F. 48, Baker, J., said:

'When a sheriff, by virtue of his office, has arrested and imprisoned a human being, he is bound to exercise ordinary and reasonable care, under the circumstances of each particular case, for the preservation of his life and health. This duty of care is one owing by him to the person in his custody by virtue of his office, and for a breach of such duty he and his sureties are responsible in damages on his official bond'--citing authorities.

And, as further said in Ex parte Jenkins:

'The sheriff of the county has the care and custody of prisoners committed to the county jail. The duty the sheriff owes to the state to keep a prisoner committed to his custody and deliver him over to the proper authority at the proper time is no more compulsory than is the duty he owes the prisoner himself to exercise reasonable and ordinary care to protect the prisoner's life and health. If he permits a prisoner to escape or to be taken from his custody the fault is prima facie his, and there has been prima facie a breach of official duty for which he is liable on his official bond.'

Hence it is plain that the sheriff's duties in regard to prisoners or others in his lawful custody is twofold, one to the state to keep and produce the prisoner when required, and the other to the prisoner to keep him in health and...