Russell v. Glascow, Civil 4740

• Decision Date: 01 October 1945
• Docket Number: Civil 4740
• Citation: 162 P.2d 129,63 Ariz. 310
• Parties: WILLIAM M. RUSSELL, Appellant, v. GEORGE GLASCOW, WILLIAM SELF and AMERICAN EMPLOYERS' INSURANCE COMPANY, a Corporation, Appellees
• Court: Arizona Supreme Court

162 P.2d 129

63 Ariz. 310

WILLIAM M. RUSSELL, Appellant, v. GEORGE GLASCOW, WILLIAM SELF and AMERICAN EMPLOYERS' INSURANCE COMPANY, a Corporation, Appellees

Civil No. 4740

Supreme Court of Arizona

October 1, 1945

APPEAL from a judgment of the Superior Court of the County of Gila. Dudley W. Windes, Judge.

Judgment affirmed.

Messrs Struckmeyer & Struckmeyer, for Appellant.

Messrs Jennings & Salmon, and Mr. Ozell M. Trask, for Appellee American Employers Insurance Company.

Stanford, C. J. LaPrade and Morgan, JJ., concur.

OPINION

Stanford, C. J.

George W. Glascow, above designated as an appellee, was chief of police of the City of Globe, Arizona, having been appointed by the mayor and council of that city, and had given bond for the faithful performance of his duties in the sum of $ 5,000, his bondsman being appellee, American Employers' Insurance Company. The council of the City of Globe had also appointed William Self as a policeman, but had required no bond of him.

In the superior court the appellant herein was designated as plaintiff, and the parties appellee the defendants, and we will hereafter use that designation.

At a time between eleven and twelve o'clock on the night of November 16, 1942, in the City of Globe, defendant Self, in making the arrest of plaintiff Russell, discharged a tear gas pencil at Russell in such a fashion as to cause an injury to his left eye. Self, the officer, took Russell to the city jail, and the evidence discloses that Russell repeatedly asked for a physician, but neither the defendant Self, nor any other officer, heard the call according to the evidence. As a result of the injury plaintiff lost his left eye. On the morning following George Glascow, the chief of police, promptly took the plaintiff to a doctor and later discharged him from the jail. Glascow was, during the time of the trouble, at his home in bed and was at no time called although he had a telephone at his home.

Russell brought his action for damages in the superior court for the sum of $ 30,000 against the parties designated above as appellees.

The chief of police later left his position and went to the State of Washington. Apparently, however, it was not for the reason of avoiding an action in this case. He was not served with process when later plaintiff brought his action in the superior court of Gila County.

A jury returned a verdict against defendant Self for the full sum of $ 30,000, and against the defendant American Employers' Insurance Company for the sum of $ 5,000, which was the amount of the bond written for Chief of Police Glascow. After the verdict was rendered a motion was made for judgment notwithstanding the verdict, which motion was granted.

Although the names have remained in the cause of action as they were in the beginning, the only defendant involved herein is the American Employers' Insurance Company.

Quoting the appellant:

"The two questions for determination by the Appeal Court are therefore interwoven with the fact situation: that is, the defendant, American Employers' Insurance Company, may be held liable on either of two theories. The bonding company is liable if the acts of George Glascow, Chief of Police, contributed to the injury of the plaintiff, or if George Glascow, Chief of Police, is responsible or liable for the acts of William Self."

Our Code, Sec. 16-210, under the heading of "Council may prescribe duties, bonds and compensation of officers," is the following:

". . . It may require all officers to give bond for the due discharge of their duties, in such sums, and with such security, as it may direct and approve, . . . ."

Both plaintiff and defendant quote the following from 43 Am. Jur., Public Officers, Sec. 281:

"It is settled, subject, however, to a number of exceptions, that in the absence of a statute imposing liability, or of negligence on his part in appointing or supervising his assistants, an officer is not liable for the default or misfeasance of subordinates and assistants, whether appointed by him or not, providing the subordinates or assistants, by virtue of the law and of the appointment, become in a sense officers themselves, or servants of the public as distinguished from servants of the officer, and providing the officer does not direct the act complained of, or personally co-operate in the negligence from which the injury results. . . ."

Defendant relies on the rule laid down in the case of Dowler v. Johnson, 225 N.Y. 39, 121 N.E. 487, 3 A. L. R. 146, wherein the late Justice Cardozo, then of New York Court of Appeals, said:

"But here the very question is whether the defendant did direct or encourage the negligent act or personally co-operate in it. Undoubtedly he is not liable for the negligence of the driver in the theory of respondeat superior. The relation between them was not that of master and servant. If he had been out of the car at the time of the accident, no one would suggest that he must answer for the driver's wrong. Even his presence in the car would be insufficient of itself and in all circumstances to charge him with liability. There must have been command or co-operation. . . ."

From the case of Tumlinson v. City of Brownsville (Tex. Civ. App.), 178 S.W.2d 546, decided in 1944, the rule above stated is adhered to. The facts therein are quoted from the opinion:

"This action was brought by Lon Tumlinson and others, seeking a recovery of damages against the City of Brownsville, A. E. Munday, city manager of the City of Brownsville, Standard Accident Insurance Company, the surety upon Munday's official bond, and Roy Weller, the fire chief or head of the fire department of said City of Brownsville. Plaintiffs below and appellants here complained that through negligence of Weller, the fire chief, and firemen serving under him, their property had not been properly protected from fire and as a result had been destroyed."

The trial court dismissed the causes of action as to the city, the city manager and his surety. Plaintiff then dismissed as to the fire chief Weller. Then plaintiff appealed. The opinion, in part, reads as follows:

". . . We believe the general rule stated by Cardozo, J., in Dowler v. Johnson, 225 N.Y. 39, 121 N.E. 487, 3 A. L. R. 146, has application here, viz., '. . . public officers are not liable for the negligence of their subordinates unless they co-operate in the act complained of, or direct or encourage it.' See also, Story on Agency, 9th Ed., § 319; Clough v. Worsham, 32 Tex. Civ. App. 187, 74 S.W. 350."

Although the case does not apply to police officers, the rule involved in this case is set forth in the case of State v. Kolb, 201 Ala. 439, 78 So. 817, 818, 1 A. L. R. 218, wherein it is stated:

" . . If the superior officer, on his own account and without authority of law, should appoint or employ such aid, the former would be liable, the doctrine of respondeat superior applying. The reason for this rule was...