Monroe v. Darr, 47221

• Court: United States State Supreme Court of Kansas
• Citation: 214 Kan. 426,520 P.2d 1197
• Docket Number: No. 47221,47221
• Parties: James David MONROE and Chris Appel, Appellants, v. Johnny DARR, Sheriff of Sedgwick County, Kansas, and Ohio Casualty Insurance Company of Hamilton, Ohio, Appellees.
• Decision Date: 06 April 1974

Page 1197

520 P.2d 1197 214 Kan. 426 James David MONROE and Chris Appel, Appellants,
v.
Johnny DARR, Sheriff of Sedgwick County, Kansas, and Ohio
Casualty Insurance Company of Hamilton, Ohio, Appellees. No. 47221. Supreme Court of Kansas. April 6, 1974.

Page 1198

Syllabus by the Court

1. A sheriff and his sureties are responsible for acts of the sheriff's deputies performed or committed in discharging their official duties.

2. Where a statute provides a claim for relief it is not necessary to plead the statute where the facts alleged are sufficient to bring the case within it.

3. A petition which alleges a claim for relief upon any theory is sufficient to withstand a motion to dismiss lodged against it. In considering such a motion dismissal should not be ordered merely because plaintiff's allegations do not support the legal theory upon which he intends to proceed since the court is under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory.

4. K.S.A. 19-805 does not impose liability on a sheriff and his bondsman for every act of misconduct on the part of his deputy. Liability attaches only when the misconduct occurs in the performance of an official act by the deputy.

5. An official act is an act or duty imposed on an officer by law, that is, an act which the law requires him officially to perform and includes any act done by an officer in his official capacity under color of his office.

Page 1199

6. In an action under K.S.A. 19-805 against a sheriff and his surety for damages for invasion of privacy and assault committed by the sheriff's deputies, it is held, the petition sufficiently stated that the deputies were in the performance of official duty so as to render the defendants answerable for the deputies' misconduct.

Jim L. Lawing, Wichita, argued the cause and was on the brief for appellants.

H. E. Jones of Hershberger, Patterson & Jones, Wichita, argued the cause, and Stephen J. Jones, Wichita, and H. W. Fanning of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, were with him on the brief for appellees.

HARMAN, Commissioner:

This is an action against a sheriff and his surety [214 Kan. 427] for damages for invasion of privacy and assault committed by the sheriff's deputies. The trial court sustained defendants' motions to dismiss for failure of the petition to state a claim upon which relief can be granted. Plaintiffs have appealed from that order.

After alleging that defendant Johnny Darr is the sheriff of Sedgwick county, Kansas, and defendant Ohio Casualty Insurance Company is a surety company doing business in Kansas, plaintiffs' petition continued:

'III

'As Sheriff of Sedgwick County, the defendant Darr is responsible for all acts of his deputies which are performed as peace officer.

'IV

'Plaintiff Monroe is a citizen who works the late evening shift and is unable to get to bed at his home, Apartment 601, Royal Regency Apartments, 4244 South Hydraulic, Wichita, Sedgwick County, Kansas, until approximately 2:00 a. m.

'V

'Plaintiff Appel is a resident of Denver, Colorado, who was a guest of Mr. and Mrs. Monroe on the occasion in question.

'VI

'At approximately 10:00 a. m., Thursday, February 8, 1973, the plaintiff Monroe was awakened by a noise in his apartment, where he, Mr. Appel, and Monroe's two children were sleeping, and the first thing he heard was the voice of a sheriff's deputy ordering him to slowly remove his hands from under the cover. The person speaking was holding a shotgun, and it was pointed directly at Mr. Monroe. Other personnel of the Sheriff's Office, including an unknown sergeant, wer also in the Monroe apartment, and the sergeant was pointing his handgun at Mr. Appel. Although the officers were uniformed, none of them stated their names or any reasons for their action before instituting a search of the premises, all of which was conducted while plaintiffs were looking down the less advantageous ends of gun barrels. There was no search warrant authorizing the deputies to enter the Monroe apartment or to search the premises.

'VII

'After several minutes of being frightened by the deputies, plaintiffs were told that the wrong apartment had been entered, and the deputies left in haste with no further explanation or apology.

'VIII

'This type of official misconduct has occurred on prior occasions since the defendant became sheriff, and it endangers the peace of mind of every private citizen whose home might be entered at gun point by officers who have made an insufficient preliminary investigation before using unreasonable force against innocent victims of police incompetence.

[214 Kan. 428]

Page 1200

'IX

'Since the assault and the invasion of their privacy, both plaintiffs, in varying degrees, have lost sleep, become apprehensive, have generally lost their peace of mind and suffered undue mental anguish as a result of the events in question. They have further become distressed over the defendant's unwillingness to take appropriate corrective measures to remedy the situation and to give the public protection from further incidents of this type.

'XI

'The defendant Ohio Casualty Insurance Company of Hamilton, Ohio, is the surety on the bond of the defendant Darr, and as such, is liable under K.S.A. 19-802 to the extent of the Sheriff's liability to the plaintiffs.'

In making its rulings the trial court had before it only plaintiffs' petition and the motions to dismiss. The ground for dismissal stated in the motions was simply that plaintiffs had not stated facts sufficient to sustain a cause of action against defendant Darr in his capacity as sheriff. The journal entry of judgment does not reveal the legal principles controlling the trial court's decision nor does the record on appeal otherwise disclose its rationale. The parties state no record was made of the trial judge's oral announcement of the ruling and they do not agree as to just what was previously argued by counsel-factors which bear on one of defendants' contentions for affirmance of the judgment.

We summarize the parties' present contentions. Plaintiff-appellants rely wholly upon statutory law making a sheriff responsible for the official acts of his deputies and his sureties liable on his official bond for the deputies' misconduct.

Defendant-appellees respond that in the trial appellants relied solely on the doctrine of respondeat superior for recovery; a sheriff is not liable for a deputy's misconduct on that theory; having relied upon that doctrine in the trial court appellants may not change theories upon appeal; further the petition shows the deputies were not performing official acts at the time of their alleged misconduct. There is no contention the petition fails to allege tortious conduct on the part of the deputies.

Appellees correctly assert that a sheriff is not liable for the official acts of his deputy upon the doctrine of respondeat superior (Duran v. Mission Mortuary, 174 Kan. 565, 258 P.2d 241; Libby v. Schmidt, 179 Kan. 683, 298 P.2d 298). It must be borne in mind, however, this court in stating the rule was referring to the common law doctrine of respondent superior-not a liability prescribed by statute [214 Kan. 429] albeit that liability is of virtually the same...