Stinnett v. City of Sherman

• Decision Date: 24 December 1897
• Citation: 43 S.W. 847
• Parties: STINNETT v. CITY OF SHERMAN et al.
• Court: Texas Court of Appeals

43 S.W. 847

STINNETT v. CITY OF SHERMAN et al.

Court of Civil Appeals of Texas.

December 24, 1897.

Appeal from district court, Grayson county; D. A. Bliss, Judge.

Action by Louis Stinnett against the city of Sherman, J. M. Blain, and others, for damages. From an order sustaining a demurrer interposed by the city, and from a judgment in favor of the remaining defendants, entered on a special verdict, the plaintiff appeals. Affirmed as to the city. Reversed as to the remaining defendants.

This suit was filed in the district court of Grayson county on August 27, 1896, by appellant, Louis Stinnett, against appellees, the city of Sherman, a municipal corporation, J. M. Blain, its chief of police, and C. H. Smith, R. R. Hazlewood, J. D. Woods, Joseph Bledsoe, and Charles Crenshaw, as sureties on the official bond of J. M. Blain. Appellant averred that he was arrested on May 24, 1896, for an alleged violation of an ordinance of the city of Sherman, and incarcerated in the city prison in a cell, with a dangerous demented person named Northcutt, who had in his possession a knife, which was a deadly weapon, with which he attacked appellant, and inflicted painful and serious bodily wounds. Appellant claims that his injuries were due and attributable to the negligence of appellees the city of Sherman and J. M. Blain, the chief of police, and their deputies, assistants, and agents, and their failure to use proper care for his safety, and laid his damages at $5,000. A general demurrer interposed by the city was sustained, to which appellant excepted. The cause was tried on special issues submitted to the jury as between appellant and J. M. Blain and his bondsmen, and resulted in a judgment that plaintiff take nothing, from which this appeal is prosecuted.

There was no material conflict in the testimony, and the facts may be stated as undisputed, and as follows:

On the night of May 24, 1896, at about 11 o'clock, appellant was in an intoxicated condition in the city of Sherman, and was arrested by two policemen, named Etter and Patterson, who conducted him to the city prison, or calaboose, and there confined him on a charge of being drunk in a public place. As soon as the cell door was locked, a man sprang upon appellant from the opposite side of the cell, and with a pocketknife stabbed him in the abdomen. The wounds penetrated the walls of the abdomen, and through one intestine, causing the intestines to protrude through the wound to the extent of about 15 inches. In response to the screams of appellant, the policemen reopened the cell door, and took him out, and then sent for a surgeon. The man in the cell who stabbed appellant proved to be a crazy person, known by the name of Northcutt, whom a policeman named Andrews had arrested on the preceding day, and placed in the city prison. This was done because Northcutt was known to be of unsound mind, and his family had requested the police force to imprison him, and notify them whenever he came to town, and also because certain residents of East Sherman had that day complained to the police that a man was out there acting strangely, and had alarmed the women in the neighborhood. The policeman Andrews, thinking that it was probably a drunken man, went out in the patrol wagon, and brought Northcutt in. On the route he made an effort to escape, but was overtaken by the policeman, who at that time made a slight search of his person, to ascertain if he had a pistol. In the language of the policeman: "As I overtook him, he showed some resistance, and, fearing he might have a pistol, I kinder felt around him, but found nothing." No search whatever was made through the pockets of his garments, and he was placed in the cell with the knife with which he subsequently inflicted the injury upon appellant. There were but three cells in the city prison, one of which was for female prisoners, one for the "chain gang," or convicts who were working out their fines, and the third was the one in which Northcutt and appellant were confined. Appellee J. M. Blain, the chief of police, had not been about the city prison since about 9 or 10 o'clock on the preceding morning, and had no deputy or other person in charge of the prison. It was an unusually busy day for the police force, on account of a circus being in town. The chief of police did not know that Northcutt had been placed in the prison, and was at his home in bed and asleep when the accident occurred. Northcutt was arrested and placed in the cell of the city prison at 12 o'clock m. of the day on which appellant was arrested and placed in the cell. Patterson and Etter, when they put appellant in the cell, did not know that Northcutt was in the cell. They knew that he had been placed in the prison that day, but did not know he was in the cell at the time they put appellant in there. Appellant suffered great agony and pain, and was confined to his bed about eight weeks. He was earning at least 75 cents per day, and his time was reasonably worth that much. There was testimony tending to show that he was permanently disabled. It was shown that the city of Sherman is incorporated under a special charter granted by the legislature, and that J. M. Blain had been duly elected and had qualified as chief of police prior to the injuries complained of. His bond, which had been duly accepted and approved by the city council, was as follows: "The State of Texas, County of Grayson. Know all men by these presents, that I, John M. Blain, as principal, and ___ and ___, as sureties, do hereby acknowledge ourselves to owe and to be indebted to the city of Sherman in the penal sum of five thousand dollars, for the payment of which to be well and truly made we hereby bind ourselves, heirs, executors, and administrators. Conditioned, however, that whereas, the said John M. Blain was elected on the 7th day of April, 1896, to the office of chief of police of the city of Sherman, Grayson county, Texas, now, therefore, if the said John M. Blain shall truly and faithfully discharge the duties of said office in accordance with the laws and constitution of the state of Texas and the ordinances of the city of Sherman, then the above shall be null and void; otherwise, to remain in full force and effect." This bond was signed by appellee Blain as principal, and appellees Smith, Hazlewood, Bledsoe, and Crenshaw as sureties.

The following ordinances of the city of Sherman were introduced:

"Chap. VII. Powers and Duties of Chief of Police.

"Sec. 3. It shall be the duty of the chief of police to execute all process or orders issued to him by the mayor or other officers of the city having authority to issue the same, and to make returns thereof according to law. He shall supervise, control and direct the police force of the city, and see that they promptly and faithfully perform their duties. He shall so apportion the police force into different watches that the entire city will be diligently protected at all times, and shall assign each policeman his rounds or duty.

"Sec. 4. He shall be keeper of the city prison, or calaboose, and shall keep the same in a cleanly and wholesome condition, and shall safely keep all prisoners confined therein until legally discharged."

"Sec. 12. The chief of police is authorized to appoint one or more deputies for whose official acts he shall be responsible. He may also employ as many deputies as he...