Robertson v. Palmer

• Decision Date: 15 November 1951
• Docket Number: No. 3431,3431
• Citation: 55 So.2d 68
• Parties: ROBERTSON et al. v. PALMER et al.
• Court: Court of Appeal of Louisiana — District of US

Page 68

55 So.2d 68

ROBERTSON et al. v. PALMER et al.

No. 3431.

Court of Appeal of Louisiana, First Circuit.

Nov. 15, 1951.

Rehearing Denied Jan. 10, 1952.

Writ of Certiorari Denied Feb. 18, 1952.

Eugene Stanley, James I. McCain, New Orleans, for appellant.

Richard Kilbourne, Clinton, Durrett & Hardin, Baton Rouge, for appellees.

ELLIS, Judge.

Plaintiff has filed this suit individually and as tutrix of her minor children for damages for the death of her husband, the children's father, against Nehemiah L. Palmer, Sheriff of East Feliciana Parish, George Freeman, Deputy Sheriff of said parish, and the National Surety Corporation, surety on the Sheriff's bond, for the alleged wrongful and illegal beating and shooting of her husband by Deputy Sheriff Freeman.

Exceptions of no cause of action were filed by the Sheriff and his bonding company, and it is from a judgment by the Judge Ad Hoc sustaining these exceptions that the plaintiff has prosecuted this appeal.

The basis of the opinion of the lower court is the recent case of Britt v. Merritt, 219 La. 333, 53 So.2d 121. This decision did not change the established law on the subject that neither a sheriff nor the surety on his official bond is responsible for a wrongful act of a deputy sheriff unless such act was done in violation of an official duty or an unfaithful or improper performance of an official act. See Sanders v. Humphries, 143 La. 43, 78 So. 168; Gray v. DeBretton, La.App., 184 So. 390, Id., 192 La. 628, 188 So. 722; Dufrene v. Rodrigue, La.App., 38 So.2d 511; McVea v. Day, 6 La.App. 382; Bolton v. Sevario, La.App., 25 So.2d 115.

The pertinent articles of plaintiff's petition for the purpose of disposing of the exceptions by applying the well-settled law to the facts as alleged and which are taken as true for the purpose of the exceptions are as follows:

'7. That on the 4th day of July 1949, an automobile accident occurred on Highway 36, a short distance from the town of Clinton, Louisiana, and the defendant herein, Deputy Sheriff, George Freeman, acting within the scope of his employment as such deputy sheriff, and acting for and on behalf of the Sheriff, the said Nehemiah Livingston Palmer, was summoned to investigate the said accident and arrived on the scene of the said accident, some distance from the town of Clinton, Louisiana, and conducted and made an investigation of the said accident in his official capacity as such Deputy Sheriff.

'8. That when the said Deputy Sheriff, George Freeman, arrived on the scene of the aforesaid accident to conduct his official investigation, and while conducting the said official investigation, as he was authorized to do in the performance of the duties of his office, the said Deputy Sheriff was under the influence of intoxicating liquors, to the knowledge of the said Nehemiah Livingston Palmer, Sheriff, his co-defendant herein, and as a result of his drunken condition, conducted the said investigation in an arbitrary and unlawful manner, and threatened, coerced and browbeat the witnesses and persons interviewed by him in the course of his investigation of the said automobile accident.

'9. That while the said Deputy Sheriff, George Freeman, acting in his official capacity as Deputy Sheriff of East Feliciana Parish, and acting for and on behalf of Nehemiah Livingston Palmer, Sheriff, aforesaid, was conducting this investigation, one Wilbert Robertson, (or Robinson) husband of your petitioner, Betty May Grinner Robertson (or Robinson), and the father of your petitioners * * * (who had not been present when the automobile accident occurred, and who had not been in any way involved in the same), came on the scene en route to report to work at Mr. Cheek's Place, some distance away from the town of Clinton, in the Parish of East Feliciana, where he was employed on week ends and holidays.

'10. That when the said Wilbert Robertson (or Robinson) came near the scene of the investigation which was then being officially conducted by the said Deputy Sheriff, George Freeman, which was immediately adjacent to and in front of Mr. Cheek's Place, where the said Wilbert Robertson (or Robinson) was employed, the said Deputy Sheriff, George Freeman, in a loud and bullying tone, ordered the said Wilbert Robertson (or Robinson) to stand back, and not to interfere with the said investigation whereupon said Deputy Sheriff, George Freeman, without any cause or provocation, and while officially conducting the said investigation of the said automobile accident as a Deputy Sheriff of East Feliciana Parish, and while acting as such Deputy Sheriff, for and on behalf of the said Sheriff, Nehemiah Livingston Palmer, and while acting as a law enforcement officer of the Parish of East Feliciana, Louisiana, struck the said Wilbert Robertson (or Robinson) with a night stick or black jack, striking him about the head, neck, shoulders and the upper torso of his body, knocking the said Wilbert Robertson (or Robinson) to the ground, and that while the said Wilbert Robertson (or Robinson) was in the act of falling to the ground, the said Deputy Sheriff, George Freeman, drew his gun and shot and wounded the said Wilbert Robertson (or Robinson).

'11. That the said Wilbert Robertson (or Robinson) sustained violent and dangerous injuries as a result of the said shooting by the Deputy Sheriff, George Freeman, and was placed in an automobile and carried to the town of Clinton, Louisiana, for medical treatment and immediately transported to the Charity Hospital in the City of New Orleans, where the said Wilbert Robertson (or Robinson) died on the 10th day of July, 1949, as a result of the injuries, beating and/or shooting as set out above.

'That the said death of the said Wilbert Robertson (or Robinson) was the direct and proximate result of the unlawful beating and/or shooting by the said George Freeman, and the wounds unlawfully inflicted upon him by the said Deputy Sheriff, George Freeman.'

We see from the allegations of the petition that the official act which the deputy sheriff was performing at the time of the beating and shooting was the investigation of an automobile accident which the petition alleges he was doing while under the influence of intoxicating liquor to the knowledge of the sheriff, and it is further charged that the deputy sheriff, as a result of his drunken condition, conducted the investigation in an arbitrary and unlawful manner by threatening, coercing and browbeating the persons interviewed by him in the course of the investigation, and that during this investigation by the deputy sheriff Wilbert Robertson (or Robinson), the deceased husband of the plaintiff, 'who had not been present when the automobile accident occurred and who had not been in any way involved in the same' came on the scene. When he arrived the deputy sheriff, 'in a loud and bullying tone ordered the said Wilbert Robertson (or Robinson) to stand back and not to interfere with the said investigation,' and it is alleged that without any cause or provocation, of course other than the charge that Robertson was interfering with the investigation, the deputy sheriff struck Robertson with a night stick or black jack about the head, neck, shoulders and upper torso of his body and then drew his gun and shot Robertson, from which he died.

There is no doubt that this petition clearly charges the performance of an official act by this deputy sheriff while drunk to the knowledge of the sheriff, and alleges facts, which, if proven, would render the sheriff and his bondsman liable for the unfaithful and improper performance of the official act. In the present case the petition charges that the deputy sheriff was investigating the automobile wreck when the deceased came upon the scene as any other outsider not connected personally with the accident, and was immediately accused of interfering with the deputy sheriff's investigation, for when the deputy sheriff told the deceased to move back and not interfere with the investigation, he was, in effect, saying, 'You are interfering with the investigation--get back,' and then, the petition charges, without any more 'to do' as a result of the interference by the deceased the deputy sheriff, instead of handling the deceased in the proper manner, struck and beat him and then shot him for no other reason than is shown by the petition, that he was interfering with the deputy sheriff's investigation of the accident which was an official act. When he struck and beat the deceased and then shot him for no other reason than is set forth in the petition, which must be taken as true for the purpose of the exception, the deputy sheriff is charged with an improper performance of his official duty in investigating this wreck. The deputy sheriff in this case was charged with the duty of investigating this accident in an orderly and lawful manner. Naturally, he had the right to prevent any interference in the performance of his official act, that is, the investigation of the accident, and he was perfectly justified in telling the deceased to stand back and not to interfere with his investigation, but clearly, should it be proven that without any other cause or provocation than that the deceased interfered with his investigation, he was guilty of unfaithful performance of his duty in beating and shooting the deceased under the facts alleged in the petition. He had the right to use such force as was necessary to prevent anyone from interfering with his investigation of the accident, but whether or not the force and means employed as charged in this petition were necessary is a question that would come up by way of defense and on the merits of the case.

Counsel for defendant rests great stress upon the following argument as shown in his brief:

'There is not the slightest suggestion in the petition that Wilbert Robertson (or Robinson) was in any way interfering or attempting to interfere with the investigation of the automobile...