People v. Beach

• Decision Date: 06 February 1911
• Parties: PEOPLE, for the Use of TAMPLIN, v. BEACH, Sheriff, et al.
• Court: Colorado Supreme Court

113 P. 513

49 Colo. 516

PEOPLE, for the Use of TAMPLIN, v. BEACH, Sheriff, et al.

Supreme Court of Colorado

February 6, 1911

Error to District Court, City and County of Denver; Harry C Riddle, Judge.

Action by the People, for the use of Bernard L. Tamplin, against George E. Beach, as Sheriff of Arapahoe County, and the National Surety Company, as surety. From a judgment for defendants, plaintiff brings error. Affirmed.

F. T. Johnson and S.W. Johnson, for plaintiff in error.

Daniel Prescott, for defendants in error.

CAMPBELL J.

Action upon the official bond of a sheriff, to recover of him and the surety on his official bond damages for alleged nonfeasance of his deputy. The bond was conditioned that the sheriff 'shall faithfully perform and execute the duties of the office of sheriff.' To the judgment dismissing the action, following a ruling sustaining a demurrer to the complaint, plaintiff has sued out this writ of error. The complaint in substance alleges that Wedow, the deputy sheriff, while acting as such and in the performance of the duties of his office, had under arrest and in custody a certain prisoner whom he was conveying to the county jail for temporary detention or safekeeping, as the law provides. They were riding in a street car from Englewood in Arapahoe county to the city of Denver, and while plaintiff, who was a passenger, was sitting in his seat in the same car near to them and free from fault, the deputy, being then intoxicated, and so acting under color and by virtue of his office, negligently dropped a loaded revolver, which was then on his person, or negligently permitted it to be dropped from his person, to the floor of the car, and the same was exploded and the bullet struck plainiff in his leg causing the injuries complained of. The revolver belonged to the prisoner, and was taken from his person by the deputy, acting in his official capacity, some time prior to the injury, and was being carried by the deputy under color and by virtue of his office, and, to the deputy's knowledge, was loaded that when the deputy sheriff took possession of the revolver or soon afterwards, acting in his official capacity, he cocked the same, and negligently and recklessly put it into his pocket in that condition, in which it remained until it fell to the floor of the car and was exploded. An indemnity, or security, contract, like written instruments generally, is to have a reasonable interpretation, or construction, but when its meaning has once been judicially determined, it is strictissimi juris. It is not to be extended by construction to bring within its scope things other than those therein expressed, merely because the judicial mind may think that they, equally with those included, ought to have been provided for. Bearing in mind, then, this rule of construction, let us analyze this complaint to see if the surety's contract indemnifies plaintiff against the acts charged against the deputy. Of course the sheriff is bound equally with his deputy, if the acts of negligence charged against the latter can properly be said to be an official duty pertaining to the office.

As we understand from the briefs, the theory of the plaintiff is that the deputy sheriff was acting by virtue, and under color, of his office in taking the revolver from the person of the prisoner, and continued so to act while transporting him from the place of arrest to the county jail. In other words, that the failure to act with due care occurred while the deputy was doing an official act, or one which was done by him as an officer under a claim of a right to do so. It is not every act which a sheriff or his deputy does while, or during the time that, he is engaged in the performance of an official duty for which the sureties on his bond are liable. The true distinction is, we think, that liability does not attach unless the act complained of is an official act, constituting a part, and directly connected with the doing, of an official act. If, for example, the sheriff steps aside from his official duty and negligently does, or omits to do, an act in no wise connected with the discharge of such duty, though done or omitted during the time of its performance, by which another is injured, the sureties certainly could not be held liable in damages...