National Surety Co. v. Boone

• Decision Date: 09 November 1933
• Docket Number: 3 Div. 53.
• Citation: 227 Ala. 599,151 So. 447
• Parties: NATIONAL SURETY CO. v. BOONE.
• Court: Alabama Supreme Court

151 So. 447

227 Ala. 599

NATIONAL SURETY CO. v. BOONE.

3 Div. 53.

Supreme Court of Alabama

November 9, 1933

Rehearing Denied Dec. 21, 1933.

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action on bond by Charles L. Boone against the National Surety Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Ball &amp Ball, of Montgomery, and Albert Hooton, of Dadeville, for appellant.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, and Richard H Cocke, of Alexander City, for appellee.

KNIGHT Justice.

Action by Charlie L. Boone against the National Surety Company, surety on the official bond of John Kyle Young, sheriff of Tallapoosa county, for the alleged shooting of Boone by Dowdell Ware, a deputy sheriff under appointment of said Young. The shooting occurred in Tallapoosa county, and this suit was instituted and had against the said surety in Montgomery county. Neither the deputy, who is alleged to have done the shooting, nor the sheriff, is sued in the action.

There was no contestation on the trial over the fact that Ware was a deputy sheriff by appointment of the sheriff, and that he had been such since the 19th day of January, 1931, and was such deputy on June 5, 1931, the date on which the shooting is alleged to have occurred. The shooting took place at or near a still, upon which prohibited liquor was being, or had been, manufactured.

The plaintiff's testimony tended to show that plaintiff, and two or three others, had gone to the place for the purpose of procuring whisky, and that, without warning of any kind, as the plaintiff approached the spot where he was shot, the deputy sheriff, Mr. Ware, shot him twice with a shotgun, some of the shot from first load taking effect in his hip, and the second in his leg; that, after being shot, he was taken by the deputy sheriff to Dadeville, and there swore out a warrant against him.

Dr. Banks, examined as a witness by the plaintiff, testified, among other things, that he and Dr. Ferguson dressed the leg; that Boone "had a gunshot wound in the leg, in the lower part of the calf of the leg"; that "there were a few shots in the buttocks on that side." This witness further testified: "A bunch of shot came through on the side, went through the fleshy part of the leg; that the cause of having to amputate the leg was that he had a case of infection and also had periotesis of the leg which came on later," which the witness explained was a sort of blood poisoning or infection of the blood stream; that the amputation was necessary; that the injury, from an examination of the leg, "was caused by a shotgun, number 6 shot approximately were found in the leg." Dr. Gaines, a witness for plaintiff, testified that the shot entered from the back side of the leg.

The testimony on behalf of the defendant tended to show that Ware was a deputy sheriff under Mr. Young on the day of the shooting; that Ware was instructed by the sheriff to go to the still; that one Willoughby, chief of police of Dadeville, went with Ware on that occasion; that, when they reached the vicinity of the still it was in operation, making whisky; that there were three persons present at the still at the time, the plaintiff being one of them; that Ware saw Boone throw wood under the still; that Boone jumped across the branch to where Ware was; that Ware then jumped up, and that plaintiff grabbed him or grabbed at him, and there ensued a scuffle between Ware and plaintiff; that plaintiff "fell backwards over into the branch" and Ware's gun shot; and that Ware also fell into the branch. The testimony of defendant tended to show that the gun was fired only once, and that the gun was fired in the scuffle, but the evidence on the part of defendant as to what caused the gun to fire is left more or less to conjecture. Ware, in testifying for defendant, testified in part on this particular point that he did not "take the gun and aim it at or point it at Charley Boone; that the gun shot when they fell, and that he didn't even know that it had shot him until after he (meaning plaintiff) told Willoughby." This witness further testified that he carried the plaintiff to the doctor's office, had the wound dressed, and then carried him to jail.

Mr. Willoughby, testifying on behalf of defendant, among other matters, stated: "That he went out on June 5, 1931, with Dowdell Ware to raid a still, being authorized to do so by Sheriff Young, the sheriff at that time; that he went with Ware that night. * * * That he heard Ware say 'stop' and that a little afterwards a gun fired; that he ran out to where the gun fired and found Ware out there in the branch. * * *" On cross-examination the witness testified in part "that he was about twenty feet back of Ware, but couldn't see him; that he heard the gun shot, and when he got there Boone was leaning against the bank and that Ware was close to him."

There was verdict in favor of plaintiff for $2,999, and judgment accordingly.

A motion for new trial was made by defendant, and this was overruled by the court.

It is first insisted that the court committed error in overruling defendant's objection to the introduction in evidence of the certified copy of the bond of John Kyle Young, as sheriff of Tallapoosa county.

Whether or not at the time the plaintiff offered this bond in evidence, the state of the evidence warranted its introduction, evidence subsequently offered both by plaintiff and defendant made the bond admissible. Therefore, even if it be conceded, which it is not, that at the particular time the plaintiff offered this evidence there was not sufficient evidence before the jury, tending to show that in going to the still, and there shooting the plaintiff, in attempting to arrest him, the said Ware was acting under instructions from the sheriff, and therefore within the line and scope of his duty and authority as such deputy, or under the color of his office, subsequently admitted evidence cured any such claimed error. S. H. Kress & Co. v. Barratt, 226 Ala. 455, 147 So. 386; Southern R. Co. v. Lefan, 195 Ala. 295, 70 So. 249.

If it be a fact, as the testimony of Mr. Ware, the deputy, would tend to show, that the plaintiff was engaged in manufacturing prohibited liquors at the time the deputy came upon him, it would have been his duty to arrest the plaintiff without warrant, even if he had not been sent there by Sheriff Young to raid the still and make an arrest.

In the case of Hereford v. Brentz, 192 Ala. 465, 68 So. 350, 351, it is held:

"In speaking of the power of a regular deputy to bind the sheriff while acting within the line or scope of his authority, it was said by this court, speaking through McClellan, J., in the case of Rogers v. Carroll, 111 Ala. 610, 20 So. 602: 'His powers, generally speaking, were those of the sheriff himself, and his acts were those of the sheriff. He had the same power to receive and execute all ordinary process as had the sheriff, and his acts or omissions under or in respect of process were the acts or omissions of the sheriff. In legal contemplation he and the sheriff were one officer, so far as third persons are concerned, as to all questions of civil responsibility.'

"The general deputy, like the sheriff, is a peace officer and has the same authority to arrest, with or without warrants; and if the deputy, while acting as such, commits a tort or trespass upon another, for which he would be liable, his chief would also be liable in the same degree and to the same extent, civilly, as the deputy himself." (Italics supplied.)

The recent case of Cain v. Skillin, 219 Ala. 228, 121 So. 521, 64 A. L. R. 1022, is here very much in point. Whether the said Ware was, or was not, acting in the line and scope of his authority, was a question for the jury, as held in that case; and, if acting within the line and scope of his authority as deputy sheriff, he improperly shot the plaintiff in performing his duty, the sheriff would be nevertheless liable civilly for the improper act. The sheriff being liable, under the plain terms of its undertaking, reading the law of the case into the bond as we must, the National Surety Company would, as surety on the sheriff's bond, be liable. The fact that the deputy may have improperly performed his duty, so long as he was acting within the line and scope of his authority, his principal, and the surety on his principal's official bond, will be liable civilly for the improper conduct.

The court committed no error in overruling defendant's objection to the introduction of the bond in evidence. Authorities supra; King v. Gray, 189 Ala. 686, 66 So. 643; Prewitt v. Neal, Minor, 386; Albright v. Mills, 86 Ala. 324, 5 So. 591.

On cross-examination of defendant's witness Jim Boone counsel for plaintiff asked him this question: "Mr. Boone, the sheriff has arrested you and you are under sentence, ain't you, right now?" The defendant objected to the question on the ground that it was illegal, immaterial, and irrelevant. The court overruled the objection, and defendant exc...