| Ill. App. Ct. | Jun 22, 1894
delivered the opinion oe the Court.
The plaintiff in error recovered a judgment against one Samuel McGee in the sum of $300, damages in an action of trespass for an assault and battery upon him, upon which an execution against the body of McGee was issued and delivered to the defendant in error, then sheriff of McDonough county, to execute.
The sheriff arrested McGee and committed him to the county jail on the 29th day of .October, 1888. The plaintiff in error paid the fees for arresting and committing McGee to the jail, and also paid his board weekly in advance for two weeks, but refused to pay for the third week for the reason, as plaintiff alleges, “ that the sheriff did not and would not keep McGee confined in the jail.” The sheriff, because of the refusal of the plaintiff in error to pay board for the third week, discharged the debtor from custody. Whereupon the plaintiff in error instituted an action of debt against the sheriff to recover damages as for an escape. A trial before' a jury resulted in a verdict and judgment for the sheriff, to reverse which this writ of error is prosecuted.
The case made by the plaintiff in error is not that McGee escaped from the jail or from the custody of the sheriff within the ordinary meaning of the word, but that the sheriff voluntarily permitted him to go and be outside the jail at different-times during the two weeks in question, which as counsel for plaintiff in error contend amounted to an escape in legal contemplation.
■ The sheriff admitted that the debtor had been taken out of the jail into the jail yard, and as the weather was cold, into the kitchen of the sheriff’s residence in the same inclosure with the jail building, and was permitted by the court over the objection of the plaintiff in error to introduce testimony to show that this only occurred at times when the debtor’s cell or room in the jail was occupied by a force of workmen engaged under the order and direction of the board of supervisors of the county, in placing in the jail steam heating apparatus, making it impracticable to safely confine him' in that cell or room at such times; that McGee refused to permit the sheriff to incarcerate him in the cells with persons confined upon criminal charges; and that McGee was kept under close or strict guard at all times when he was so out of the jail. The admission of such testimony, and that the court instructed the jury that the facts it tended to prove, if established by a preponderance of the evidence, constituted a defense to the action, are the only exceptions necessary to be noticed.
• Counsel for plaintiff in error have collected and cited in their brief quite a number of authorities bearing upon the liability and duty of sheriffs in such cases, from which the rule may readily be deduced that nothing but the act of God or the public enemy will justify a sheriff in permitting 'a prisoner for debt to be outside the jail, etc.
• It is well said in Murfee on Sheriffs, Sec. 190, that the books abound in such cases, yet that most of this law is under the new and more enlightened systems of the present day practically obselete.
The duty of a sheriff, as we are disposed to declare the law now to be, is that he shall keep such debtor confined in the jail and grant him no privilege or indulgence inconsistent with his condition as a prisoner, and permit no relaxation of the confinement of the person of such debtor, to the end not only that the body of the prisoner may be at all times in the control of the sheriff, but also that the imprisonment may be actual, irksome, and a source of discomfort, so far as close and rigorous confinement in the jail may produce such results. Tet, while a sheriff may not, as an indulgence or privilege, allow the debtor to go outside the jail, it can not, we think, be said that he is to be held conclusively liable as for an escape, upon proof that he had taken or allowed the debtor to be out of jail. He may show the circumstances which induced him to so act, and from such circumstances it may be determined whether the absence of the prisoner from the jail was but temporary and for justifiable and good cause or was a mere indulgence or privilege granted the prisoner.
The view of the law we have expressed is not inconsistent with the rule announced to the jury in the 2d instruction given at ^request of plaintiff in error, wherein the jury are told that the sheriff should be held liable as for an escape if he allowed McGee to go outside the jail for ever so short a time for his own ease or comfort, or to do chores, nor with the 21st and 23d instructions given in the same behalf, in each of which it is declared that the sheriff is liable for an escape if he permitted McGee to be out of the jail for any purpose when not under strict guard. Having procured the law to be so given to the jury, the plaintiff in error can not now be heard to complain that the court ruled to the same effect in instructions given for the sheriff. Com. Coal Co. v. Hanni, 146 Ill. 614" date_filed="1893-10-27" court="Ill." case_name="Consolidated Coal Co. v. Haenni">146 Ill. 614.
The jury in the case at bar at the request of the plaintiff in error made answer to twenty-seven special interrogatories.
In substance these findings are that the defendant in error caused McGee to be taken out of the jail only at times when the workmen were putting in the steam heating apparatus; that it was necessary to do so at such times, and that McGee was always under strict guard when so outside the jail. The evidence sufficiently warranted the conclusion reached by the jury as to these facts, and we are inclined to agree with the trial judge, that the sheriff, under the proof, ought not be deemed guilty of either a voluntary or negligent escape. Had the jail been insufficient to secure the prisoners therein confined, “ then the sheriff should have taken the debtor to the nearest sufficient jail of another county,” in compliance with Sec. 10, Chap. 15, entitled, “ Jails.” But here the jail was not so insufficient. Workmen were there not to make it stronger or more secure, but to provide for heating it, so that those confined might not suffer during the winter that was then approaching. Indeed, the evidence is that it was then so cold, that one could not have remained in the debtor’s room of the jail without suffering, a fact also worthy of consideration, in connection with the other facts bearing upon the propriety and legality of the acts of the sheriff.
The judgment must, we think, be affirmed.