Leath v. Smith

• Citation: 200 So. 623,240 Ala. 639
• Decision Date: 27 February 1941
• Docket Number: 6 Div. 704.
• Parties: LEATH ET AL. v. SMITH.
• Court: Supreme Court of Alabama

200 So. 623

240 Ala. 639

LEATH ET AL. v. SMITH.

6 Div. 704.

Supreme Court of Alabama

February 27, 1941

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages by Roy Lee Smith against R. A. Leath and Standard Accident Insurance Company. From a judgment for plaintiff defendant appeals.

Transferred from Court of Appeals under Code 1923, § 7326.

Affirmed.

Motley & Motley, of Gadsden, and Coleman, Spain, Stewart & Davies and H. H. Grooms, all of Birmingham, for appellants.

Beddow Ray & Jones, of Birmingham, for appellee.

LIVINGSTON Justice.

This is an action against the sheriff and the surety on his official bond for damages caused by a trespass upon the person of the plaintiff committed by a deputy sheriff under color of his office as such and in the line and scope of his authority.

The complaint contains one count and is in form a tort action. This form of action is available under such circumstances though the surety on the bond is sued jointly, and is liable by virtue of its contract. Hill v. Hyde, 219 Ala. 155, 121 So. 510; National Surety Co. v. Plemmons, 214 Ala. 596, 108 So. 514; Deason v. Gray, 192 Ala. 611, 69 So. 15; Holland v. Fidelity & Deposit Co. of Maryland, 225 Ala. 669, 145 So. 131.

The one amended count of the complaint is in the following words and figures:

"The plaintiff claims of the defendant the sum of Ten Thousand ($10,000) Dollars as damages, for that on to-wit the 6th day of December, 1937, R. A. Leath was Sheriff of Etowah County, Alabama and Standard Accident Insurance Company was surety upon his official bond in the penal sum of Ten Thousand ($10,000) Dollars; and plaintiff further avers that on to-wit the 6th day of December, 1937, a duly authorized Deputy Sheriff one P. H. Handy, duly appointed by the said R. A. Leath, while acting in line with and within the scope of his employment as Deputy Sheriff while attempting to arrest and take the plaintiff into his custody as Deputy Sheriff of said County did wrongfully shoot this plaintiff through the right arm and immediately below the shoulder, thereby proximately causing this plaintiff to suffer the following injuries and damages:

"The plaintiff was temporarily disabled; plaintiff was permanently disabled; plaintiff was made sick, sore and lame for a long time; plaintiff incurred much and great expense for the services of physicians, surgeons, hospitals, drugs, medicines and bandages necessary in and about the treatment of his aforesaid injuries; plaintiff lost much time from his usual gainful occupation; plaintiff was caused to suffer much

and great physical pain and anguish; plaintiff was caused to suffer much and great mental pain and anguish."

Ordinarily when an agent commits a trespass when acting in the line and scope of his authority, but not authorized by his principal to commit the trespass, the agent is liable in an action of trespass and the principal in case, but that a joint action against them is not available. City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389; Louisville & N. R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103; Ex parte Louisville & N. R. Co., 203 Ala. 328, 83 So. 52; Holland v. Fidelity & Deposit Co. of Maryland, supra.

On the other hand, it is now well settled that a different rule obtains in respect to a sheriff and his deputies. The distinction is variously expressed but leading to the same result. In Hereford v. Brentz, 192 Ala. 465, 68 So. 350, 351: quoting from Rogers v. Carroll, 111 Ala. 610, 20 So. 602, that "in legal contemplation he [the deputy] and the sheriff were one officer, so far as third persons are concerned, as to all questions of civil responsibility," it was held that an action of trespass will lie against the sheriff for a trespass committed by his deputy. Holland v. Fidelity & Deposit Co. of Maryland, supra.

Appellants insist that the one count in the complaint is defective in not alleging that the deputy was "acting under color of the office." True, the count does not use the words "acting under color of office," but it does allege that "a duly authorized deputy sheriff one P. H. Handy, duly appointed by the said R. A. Leath, while acting in line with and within the scope of his employment as deputy sheriff, while attempting to arrest and take the plaintiff into his custody as deputy sheriff of said county did wrongfully shoot this plaintiff through the right arm, etc." These allegations are sufficient. ...