Magenheimer v. State ex rel. Dalton

• Decision Date: 13 March 1950
• Docket Number: No. 17931,17931
• Citation: 120 Ind.App. 128,90 N.E.2d 813
• Parties: MAGENHEIMER et al. v. STATE ex rel. DALTON.
• Court: Indiana Appellate Court

Page 813

90 N.E.2d 813

120 Ind.App. 128

MAGENHEIMER et al. v. STATE ex rel. DALTON.

No. 17931.

Appellate Court of Indiana, in Banc.

March 13, 1950.

Glenn W. Funk, Indianapolis, for Magenheimer.

James E. Rocap, James E. Rocap, Jr., John T. Rocap, Indianapolis (Rocap & Rocap, Indianapolis, Pell & Good, Shelbyville, of counsel), for Indemnity Ins. Co. of N. A.

Edward F. New, Indianapolis, Leroy K. New, Indianapolis, New & New, Indianapolis, H. Harold Soshnick, Shelbyville, for appellee.

WILTROUT, Judge.

The relatrix' decedent died while a prisoner in the Marion county jail, after eating certain food served there. Appellee brought this action against the appellants, the then county sheriff and the surety on his bond. Among other things the complaint alleges:

'(a) That the defendant, Mageheimer, as such Sheriff, negligently provided unsanitary and unfit meat and drink for Future Dalton, a lawful prisoner in his custody.

'(b) That the defendant, Magenheimer, as such Sheriff, negligently failed to take proper care of Future Dalton in this towit: That a long and unreasonable delay was made in summoning a doctor to her side with the result that said Future Dalton died before any proper physician was called or notified.'

Trial by jury resulted in a verdict in favor of appellee for $4,500, upon which judgment was entered. Appellants assign as error the overruling of their motion for new trial.

There was evidence from which the jury could have found the facts hereinafter set forth.

Decedent, a 27 year old woman, was serving a thirty day sentence for petit larceny. There were matrons at the jail, under the supervision of the sheriff, who was their immediate superior, and who took orders from him.

Unsanitary and unfit meat, which was cooked by a deputy sheriff, was served to decedent and other prisoners on December 25, 1946. A matron was informed that the meat smelled 'funny', but nevertheless directed that it be placed on the table. Decedent ate two helpings of the meat, while other prisoners ate little or none of it. Decedent became violently and dangerously ill within a few hours after eating the meat, which illness was obvious and apparent. After becoming partially unconscious for a while she requested a matron to summon a doctor, and other prisoners persisted in requesting a doctor for decedent, which requests were refused. She screamed and groaned throughout the night and called for the matron to get her a doctor. Other prisoners who had eaten the meat became ill during the night. One who had not eaten with the others did not become ill. In the morning decedent was found dead.

There was evidence from which the jury could have found that death was due to gastro-enteritis caused by spoiled or impure meat, as well as evidence from which the jury could well have inferred that decedent's life might have been saved had she had timely and proper medical attention.

Appellants contend that negligence in failing to summon a doctor for decedent was not an issue in the case, and claim error with reference to certain instructions, based upon this contention. From a reading of the entire complaint, we are of the opinion that it sufficiently informed appellants that they were called upon to meet such a charge of negligence.

Appellant Magenheimer next claims that he is not liable by reason of any negligence, or any act or ommissions of the prison matron; that the Act of 1901, ch. 132, p. 304, Burns' 1942 Repl. §§ 13-1201 to 13-1207, placed female prisoners in the sole charge and care of the prison matron independently and exclusively of the sheriff and not as his deputy; that the Act of 1901 repealed the earlier act insofar as the sheriff's responsibility for female prisoners is concerned; that it is the duty of the matron to provide proper food and drink and not that of the sheriff; that no negligence or act of the matron can be imputed to him.

The court must ascertain the intention of the legislature, to the end that all of the statutes on the same subject may be construed together so as, if possible, to produce a harmonious system. Dreves, Inc. v. Oslo School Twp. of Elkhart County, 1940, 217 Ind. 388, 28 N.E.2d 252, 128 A.L.R. 1405; Chiocago I. & L. R. Co. v. Downey, 1937, 103 Ind.App. 672, 5 N.E.2d 656.

Sections 49-2802 and 49-2804, Burns' 1933, 2 R.S.1852, ch. 6, §§ 2 and 4, p. 10, provide that the sheriff shall 'take care of the jail and the prisoners therein' and 'may appoint deputies, and shall be responsible for their acts as such.'

Section 13-1004, Burns' 1942 Repl., 1 R.S.1852, ch. 58, § 3, p. 345, provides: 'The sheriff of the county, by himself or deputy, shall keep the jail, and shall be responsible for the manner in which the same is kept. He shall keep separate rooms for the sexes, except where they are lawfully married, and he shall provide proper meat, drink and fuel for prisoners, if they have no other convenient way of supplying themselves.' Section 49-1325, Burns' 1933, 1949 Supp., Acts 1935, ch. 73, § 3, p. 217, provides: 'It shall be unlawful for any officer or person, without first having obtained the consent of the sheriff therefor, to take any food into any county jail for the use of any prisoner who is confined therein, except the food which is prepared and furnished by the sheriff having charge of such jail.'

The above-cited Act of 1901 created the office of prison matron in counties containing a population of 50,000 or more. It provides that the matron shall be appointed by the sheriff, and may be removed by him for good cause shown. 'Such prison matron, when appointed, shall be a member of the sheriff's force in such county, and shall have all the authority now delegated to sheriffs and police officers in such counties * * *' It is her duty 'to receive, take charge of, search, and properly care for, at the jail * * * all female prisoners * * *' 'She shall be jailer in charge of the female department of the jail * * * with all the powers and duties of a member of the sheriff's or police force * * *.' 'Such prison matron and her assistant or assistants shall be paid such compensations or salaries as other deputy sheriffs and police officers are paid for like work.' All laws in conflict with this were repealed.

We are of the opinion that by the Act of 1901, the matrons did not become, in a sense, officers themselves or servants of the public, as distinguished from deputies of the sheriff, so as to relieve the sheriff from responsibility for their acts as such.

Appellants urge that there was no negligence in failing to call a physician for decedent, as the duty of attending upon all prisoners confined in jail was that of the jail physician appointed by the board of county commissioners. The jail physician testified that he was 'subject to call at any time,' and that it 'was up to the sheriff and his staff to call me.' Appellants' contention is answered in the case of Lamar v. Board of Commissioners of Pike County, 1892, 4 Ind.App. 191, 30 N.E. 912, 914: 'In the case before us it was the duty of Smith, the jailer in charge of the prisoner, and acting for the sheriff, to summon a competent physician under the existing emergency, to treat the prisoner, and thereby save his life, if such could be done. It would have been inexcusable neglect on the part of the jailer to have waited four hours to summon the secretary of the board of health, 12 miles distant, when the necessary medical aid could be obtained speedily and near at hand, and was essential to save the life of the prisoner.'

Appellants next say that the statute making sheriffs responsible for the acts of their deputies as such is in derogation of the common law and must be construed strictly; that therefore liability is confined at most to acts in the nature of positive or aggressive wrongs. Appellants are in error as to the common law on this subject. The office of sheriff is one of the oldest known to the common law, and may have existed as early as the Roman occupation of England. Coke Upon Littleton, 168a. It is generally recognized that the liability imposed upon sheriffs by statute for the acts of their deputies is merely declaratory of the common law. 47 Am.Jur., Sheriffs, Police, and Constables, § 158, p. 932; 57 C.J., Sheriffs and Constables, § 194, p. 797; Blackstone's Commentaries (Gavit Ed.) p. 143; State ex rel. Geyer v. Griffin, 1947, 80 Ohio App. 447, 76 N.E.2d 294.

Appellants urge that there is no provision in the statutes or bond sued upon that makes the...