State v. Lightcap

• Citation: 181 Miss. 893,179 So. 880
• Decision Date: 28 March 1938
• Docket Number: 33121
• Court: United States State Supreme Court of Mississippi
• Parties: STATE, FOR USE OF DEW, v. LIGHTCAP et al

179 So. 880

181 Miss. 893

STATE, FOR USE OF DEW, v. LIGHTCAP et al

No. 33121

Supreme Court of Mississippi

March 28, 1938

Division A

Suggestion Of Error Overruled April 25, 1938.

APPEAL from the circuit court of Hinds county, HON. J. P. ALEXANDER Judge.

Personal injury action by the State, for the use of D, Herbert Dew against Thomas M. Lightcap and another. From a judgment entered on a directed verdict for defendants, plaintiff appeals. Affirmed.

Affirmed.

Brewer & Hewitt, of Jackson, for appellant.

The principal question involved is whether or not at the time the acts complained of were committed by the deputy sheriff, Griffin Pigg, he was acting by virtue or under color of his office. The record shows that chief deputy sheriff, Warren, and deputies, Pigg and Murphy, were in Eden on the night in question for the purpose of keeping the peace. That while so on duty Griffin Pigg arrested or took in custody a negro, and that the negro appealed to his employer, Herbert Dew, for assistance. Dew informed Pigg that he would go on the negro's bond to which Pigg replied that he wished to question the negro. Dew then asked that the negro be questioned in his presence to which Pigg demurred, and as a result of Dew's insistence Pigg shot Dew four times. The question is then, was this act done under color of office, or was it done as a private citizen ? A test often applied and one which has received approval of many of the highest courts in the land is found in 24 R. C. L. 965, sec. 59: "Would he have acted in the particular instance if he were not clothed with his official character, or would he have so acted if he were not an officer? If he assumed to act as an--officer whether under valid or void process, or under no process whatever--the bondsmen should be held., as he is held, for they are the sponsors of his integrity as an officer while acting as such."

Geros v. Harries, 65 Utah 227, 236 P. 220; Lynch v. Burgess, 49 Wyo. 30, 273 P. 691; Bostatter v. Hinchman, 243 Mich. 589, 220 N.W. 775; State ex rel. Kaercher v. Roth, 330 Mo. 105, 49 S.W.2d 109; Taylor v. Slaughter, 171 Okla. 152, 42 P.2d 235; Brown v. Weaver, 76 Miss. 7, 23 So. 388.

In the present case, the deputy either under the mistaken belief that plaintiff had begun an assault upon him with a deadly weapon or because he resented plaintiff's interference with what he considered his official duty. The deputy was acting within the general scope of his powers during the entire incident, he having been commissioned to patrol the streets and see that the peace was kept, and the whole controversy having arisen in connection with the improper exercise of his authority in reference thereto.

Dean v. Brannon, 139 Miss. 312, 104 So. 173; Hinton v. Sims, 171 Miss. 741, 158 So. 141; State for use of McLaurin v. McDaniel, 78 Miss. 1, 27 So. 994.

Surely the acts complained of here although illegal and oppressive were in the line (direction) of official duty.

Martin v. Smith, 136 Ky. 804, 125 S.W. 249.

The jury heard all of the evidence which was fully and fairly presented for their consideration. The plaintiff was shot in the back four times, once in each leg, and twice near the hips, and the injuries were still painful a year and a half later. The jury was fairly instructed and returned into court their verdict for the plaintiff in the sum of $ 8000. We submit that the trial court committed gross and grave error in setting aside the verdict.

Shelton v. Underwood, 174 Miss. 169, 163 So. 828.

R. R. Norquist, of Yazoo City, and Butler & Snow, of Jackson, for appellees.

There can be no serious contention but that the action of the lower court in setting aside the first verdict of the jury in favor of the plaintiff and against the defendants and granting to the defendants a new trial was entirely proper.

Where a verdict is grossly excessive, as in this instance, it is not only the right of the trial court, but the duty of the trial court to set the same aside and grant a new trial under such terms as he shall deem proper.

Chapman v. Powers, 150 Miss. 687, 116 So. 609; G. M. & N. R. R. Co. v. Jones, 155 Miss. 689, 125 So. 114; Case v. Y. & M. V. R. R. Co., 114 Miss. 21, 74 So. 773; Davis v. McDonald, 178 So. 467; Beard v. Williams, 172 Miss. 880; City of Vicksburg v. Scott, 168 Miss. 572; Shell Petroleum Corp. v. Kennedy, 167 Miss. 305; National Box Co. v. Henry, 140 Miss. 397; Carver v. City of Jackson, 82 Miss. 583; Y. & M. V. R. R. Co. v. Mothershed, 122 Miss. 835; Interstate Co. v. McDaniel, 178 Miss. 276; M. & O. R. R. Co. v. Johnson, 165 Miss. 397; Y. & M. V. R. R. Co. v. Pittman, 169 Miss. 667; Fore v. I. C. R. R. Co., 172 Miss. 451.

The evidence, we respectfully submit, not only fails to show that Deputy Sheriff Pigg was acting in an official capacity, but, on the other hand, affirmatively shows that the shooting of plaintiff was not an official act, was not under color of, nor by virtue of, his office as deputy sheriff, and, accordingly, is not a breach of the official bond of the sheriff.

Sec. 2888, Code of 1930.

As a general rule, the official bond of a sheriff or constable imposes liability only for what the officer unlawfully does or omits to do in the execution of his office or of some official duty imposed by law, and does not cover any act or omission done without authority of law or in his private or personal capacity as a man or citizen, or an act constituting a mere abuse or usurpation of power and done without process of any kind.

57 C. J. 1013; 22 R. C. L. 506; Radford v. Hull, 30 Miss. 712; Furlong v. State, 58 Miss. 717; Brooks Oil Co. v. Weatherford, 91 Miss. 501; Alcorn v. State, 57 Miss. 273; U. S. F. & G. Co. v. Yazoo City, 116 Miss. 358; U. S. F. & G. Co. v. Young, 127 Miss. 725; Pickle v. Brooks, 162 Miss. 87; State ex rel. v. West, 171 Miss. 203; Jordan v. Neer, 34 Okla. 400; State v. Mankin, 68 W.Va. 772; Chandler v. Rutherford, 101 F. 754; State v. Wade, 87 Md. 529; State ex rel. v. Clausmeyer, 154: Ind. 599; Jones v. Van Bever, 164 Ky. 80, L.R.A. 1915E 172, 174 S.W. 795.

A sheriff is not answerable for any default of his deputies unless it be a default in executing powers lawfully derived from the authority of the sheriff; and where the deputy undertakes any business not resulting from the duties of his office, the sheriff is not responsible.

Bond v. Ward, 7 Mass. 123, 5 Am. Dec. 28; Moulton v. Norton, 5 Barb. (N.Y.) 286; Robertson v. Smith, 16 Ga.App. 760, 85 S.E. 988; Maddox v. Hudgeons, 31 Tex. Civ. App. 291, 72 S.W. 414; People use of Tamplin v. Beach, 49 Colo. 516, 113 P. 513; Brown v. Weaver, 76 Miss. 7; Dean v. Brannon, 139 Miss. 312; Hinton v. Sims, 171 Miss. 741; McDaniel v. MeLaurin, 78 Miss. 1; Martin v. Smith, 136, Ky. 804.

This is not a question of the deputy sheriff exceeding his authority; the act of Deputy Sheriff Pigg in shooting the plaintiff was simply not an official act. So far as this record shows, such act was a personal and private act on the party of Deputy Sheriff Pigg.

Accordingly, we respectfully submit that the lower court was correct in sustaining the respective motions of both of these defendants in the court below and this case ought to be affirmed.

This was in no sense a ratification of the act. This act was committed outside of the line of duty or scope of employment of Deputy Sheriff Pigg and there can be no ratification or adoption in such a manner.

Wells v. Robinson Bros. Motor Co., 153 Miss. 451; Miss. Central R. R. Co. v. Robinson, 106 Miss. 896; Lizanna v. Edward Motor Sales Co., 163 Miss. 266; G. M. & N. R. R. v. Willis, 171 Miss. 732; McCarty v. Mitchell, 169 Miss. 82; Great Southern Lbr. Co. v. May, 138 Miss. 27; Hines, General Agent, v. Green, 125 Miss. 476; Davis v. Green, 67 L.Ed. 299; Petroleum Iron Works v. Bailey, 124 Miss. 11; Hines v. Cole, 123 Miss. 254.

Argued orally by Wm. H Hewitt, for appellant, and by Chas. B. Snow, for appellee.

OPINION

Smith, C. J.

This is an action by the State, for the use of D. Herbert Dew, hereinafter referred to as the appellant, against Thomas M. Lightcap, a former sheriff of Yazoo county, and the National Surety Corporation, the surety on his official bond. The appellant sued for injuries inflicted on Dew during Lightcap's term of office by Griffin Pigg, a regularly appointed deputy of Lightcap's. Lightcap is a resident of Yazoo county, serving as a regularly appointed deputy sheriff of that county. He requested the court, but it declined, to change the venue to Yazoo county under section 495, Code of 1930. It will not be necessary for us to review this ruling.

The case was tried twice, the first trial resulting in a verdict and judgment for the appellant for $ 8,000. This judgment was set aside by the court below on a motion therefor. Several grounds were assigned in this motion for a new trial, one of which was that the verdict was excessive; and that it was excessive so clearly appears that we must hold that the court below committed no error in setting the verdict aside. On the second trial, when the appellant finished his introduction of evidence...