Wray v. McMahon

• Decision Date: 20 June 1938
• Docket Number: 33182
• Citation: 182 Miss. 592,182 So. 99
• Court: Mississippi Supreme Court
• Parties: WRAY v. MCMAHON et al

182 So. 99

182 Miss. 592

WRAY v. MCMAHON et al

No. 33182

Supreme Court of Mississippi

June 20, 1938

Division A

1 OFFICERS.

A governmental board or council in discharge of its duties acts in an official and not in an individual capacity, and any neglect or failure in exercise of its powers or in discharge of its duties is the default of board and not of individual members, who are not liable unless expressly made so by statute.

2. MUNICIPAL CORPORATION.

In action for an assault and battery allegedly committed by two policemen appointed by mayor and city commissioners declaration alleging that mayor and commissioners knew or should have known by exercise of reasonable care that policemen were unsuitable to serve as policemen, and that commissioners were grossly negligent in performance of their official duties in making appointment, was insufficient to state cause of action against mayor and commissioners, where appointment of policemen was vested by statute in mayor and commissioners acting as a governmental body and not in any of them as individuals.

3 PLEADING.

On demurrer, the challenged pleading is taken strongest against pleader.

4 PLEADING.

Where an averment is in the alternative or disjunctive, and one of alternatives if standing alone would show cause of action while other woud not, the court on demurrer must consider pleading according to alternative which is against pleader and in favor of demurrant.

5. MUNICIPAL CORPORATIONS.

In action for assault and battery against mayor, city commissioners, chief of police and two policemen for assault and battery allegedly committed by policemen, declaration alleging that commissioners and chief of police were grossly negligent in appointing policemen was insufficient to state cause of action against chief of police, where power of appointment rested solely with mayor and commissioners, in absence of any allegation that recommendation of chief of police was an efficient factor in the improper appointment.

6. ASSAULT AND BATTERY.

In action for assault and battery against two policemen and others, declaration alleging that they made a violent assault and battery upon plaintiff with police clubs, and seriously injured him without cause so that his eardrum was ruptured and his hearing permanently impaired, stated a cause of action against policemen.

HON. S. F. DAVIS, Judge.

APPEAL from the circuit court of Leflore county, HON. S. F. DAVIS, Judge.

Action by T. L. Wray against Tom McMahon and others to recover for an alleged unprovoked assault and battery committed by two policemen upon the plaintiff. From the judgment rendered, the plaintiff appeals. Affirmed in part, reversed in part and remanded.

Affirmed in part; reversed in part and remanded.

Gardner, Denman & Everett, for Greenwood, for appellants.

The doctrine of respondeat superior applicable to the relation of master and servant does not apply to a public officer so as to render him responsible for the acts or omissions of subordinates whether appointed by him or not, unless he, having the power of selection, has failed to use ordinary care therein, or unless he has been negligent in supervising the act of such subordinates, or has directed or authorized the wrong.

46 C. J. 1045, sec. 330.

It is stated in Central Railroad & Banking Co. v. Lampley, 52 Am. Rep. 334, that, "It is conceded that a public officer is liable for his own misconduct or negligence, and for the misconduct or negligence of his subordinates, where he is invested with their selection or appointment, and from carelessness or unfaithfulness appoints incompetent or untrustworthy persons."

Wiggins v. Hathaway, Varb. 632; State of Alabama v. Kolb, 1 A.L.R. 218; City of Richmond v. Long's Admr., 94 Am. Dec. 461.

The Supreme Court of Mississippi has approved the principle of law stated in the foregoing authorities in the very recent case of Rhodes v. Millsaps College, 176 So. 253.

The general rule exempting charitable institutions from liability has been based upon public policy. The general rule exempting public officers from liability for negligence of persons appointed by them has been based on public policy. The same rules of public policy are applicable in the case of charitable institutions and munici-officers. If there is any distinction or difference in the rule, it should be that charitable institutions should be entitled to a greater protection by law or public policy than municipal officers. If a charitable organization is not liable "where it has exercised care and caution in the selection of its servants for an injury," then conversely if it has not exercised care and caution in the selection of its servants, it is liable to a person injured and damaged by a tort committed by its agent so selected. The court clearly and without reservation states that "in these cases it is recognized there is liability where there is negligence in selecting its agent."

We respectfully urge that this case is authority for the position which the appellant takes with reference to the Mayor, Commissioners and Chief of Police in this case. Certainly there must be some remedy afforded by courts of justice to persons who have suffered great injuries because of the negligence of officers who are vested with the duty of appointing suitable policemen who must deal with the public.

Baptist Hospital v. Moore, 156 Miss. 687; James v. Y. & M. V. R. R. Co., 153 Miss. 783; Gardiner Co. v. Permenter, 111 Miss. 818.

The declaration in this case has stated a cause of action against the Mayor and Commissioners clearly and concisely in accordance with sound principles of law approved by the leading legal authorities of this country including the Supreme Court of Mississippi.

One of the well established principles of our law is that an officer must not use more than necessary force in making an arrest. Our courts have faithfully sought to protect citizens from unnecessary abuse of authority by officers of the law.

Brown v. Weaver, 76 Miss. 13; 51 L.R.A. 215; 2 R. C. L. 479; 19 R. C. L. 926; 27 L.R.A. 604; State v. Pugh, 9 Am. St. Rep. 44; Hinton v. Sims, 158 So. 142; D'Aquilla v. Anderson, 153 Miss. 558.

It was argued at some length by counsel for the Chief of Police that no cause of action was stated in the declaration against him. With equal vehemence and assurance appellant insists that he has charged sufficient facts to constitute liability on the part of said Chief of Police.

The Chief of Police occupies the dignity and position of a public officer. Therefore, the same principle of law which governs in the case of the Mayor and Commissioners governs the liability of the Chief of Police.

If the Mayor, Commissioners and Chief of Police are guilty of any negligence in the duties which they performed under the color of their office as well as for those done by virtue of their office, they are liable personally and on their official bonds when such bonds are conditioned for faithful performance of all of the duties of their respective offices.

An officer may be held personally liable on his official bond for negligence in the performance of duty.

18 A.L.R. 198; 39 A. 15. R. 1306; Dean v. Bannon, 139 Miss. 312, 104 So. 173; State v. McDaniel, 78 Miss. 4; Lizana v. State, 109 Miss. 464; 22 R. C. L. 506, sec. 190.

The declaration charges a breach of the official bonds of the Mayor and Commissioners and Chief of Police by virtue of their negligence in the selection and appointment of incompetent policemen. They are not only charged with a breach of the bond, but they are charged with an act of negligence which is a tort that brings about the breach of the bond and which jointly with the tortuous acts of negligence of the two policemen caused the injuries to the appellant.

State, for use of Russell v. McRae, 152 So. 826.

Appellees are contending that, because the relationship of master and servant or principal and agent does not and cannot exist between the Mayor, Commissioners, Chief of Police and the appellees, McMahon and Shurden, there is an improper joinder of parties in one and the same count. Appellant is not contending that the relationship of master and servant or principal and agent exists. The cause of action is based on two separate but related acts of negligence which contributed to and were culminated in the injury and damage to the appellant when he was assaulted by these incompetent, unsuitable police officers who were negligently selected and appointed. There is negligence on the part of all of the parties, and the right to recover is not based upon the relationship of master and servant or principal and agent.

I. C. R. R. Co. v. Harris, and Harris v. G. & S. I. R. R. Co., 85 Miss. 15.

Concurrence of acts of negligence is not the test of joint liability, but the true test is whether the acts of negligence contributed to the injury.

49 C. J. 157; 20 R. C. L. 176, sec. 145; 47 C. J. 70, sec. 143.

The declaration alleges the general fact that said officers were unsuitable and improper persons to serve as policemen. It alleges the specific facts which make them incompetent which are as follows: they were high tempered; they were given to explosive outbursts of temper; they lacked self control; they lacked restraint which is essential to the qualifications of a good police officer. These are specific facts which any suitable police officer should reasonably possess.

The declaration further alleges that each of said policemen was unreasonable, that they were unnecessarily arbitrary, that they were dictatorial. These are specific allegations concerning their disposition and temperament.

These are allegations of ultimate facts. It is not necessary for appellant to state the evidentiary facts by...