159 So. 826 | Ala. | 1935
This is an action of trespass vi et armis against Giles, as sheriff of Madison county, and the surety on his official bond, for wrongfully causing the death of plaintiff's minor son. Holland v. Fidelity Deposit Co. of Maryland et al.,
The complaint consists of a single count, which, after averring that the defendant Giles was on June 5, 1932, the sheriff of Madison county, and that the other defendant was the surety on his official bond, avers, "that on to-wit, said date the defendant Ben F. Giles, acting by and through his duly authorized deputy, one W. T. McMinn, then and there acting within the line and scope of his employment as such deputy and in and about the performance of his official duties as deputy sheriff of Madison county, Alabama, appointed and employed by the defendant Ben F. Giles, wrongfully shot and killed plaintiff's minor son, Homer Parker."
The defendants "separately and severally" demurred to the complaint, on grounds, among others, that it does not state a joint cause of action in favor of the plaintiff against both defendants; that no cause of action is stated therein in favor of the plaintiff against the defendant Giles; that no cause of action is stated therein against the surety; and that the complaint shows on its face that there is no joint liability on the part of these defendants for the alleged wrongs.
The demurrer was overruled and the defendants separately pleaded, in short by consent, the general issue with leave to give in evidence any matter, which, if specially pleaded, would constitute a defense, with like leave to plaintiff to offer proof of any matter that would be admissible in reply to such special defenses. There was a verdict and judgment for plaintiff against both defendants; hence this appeal.
The plaintiff rests his right of action on the provisions of section 5695 of the Code 1923, giving to the father a right of action "when the death of a minor child is caused by the wrongful act, or omission, or negligence of any person or persons, or corporation, his or their servants or agents," and the question presented for decision is whether or not a deputy sheriff, acting within the *121 scope of his duty and authority, is an agent or servant of the sheriff within the doctrine of respondeat superior. (Italics supplied.)
There can be no question that Giles would be personally liable under this statute for his own acts in wrongfully or negligently causing such death; nor is it to be doubted the sheriff, as such, and the surety on his official bond, would be liable for a personal injury, not resulting in death, inflicted or caused to another by his negligent or wrongful act, or that of his deputy acting by virtue of his office or under color thereof. Such right of action exists under the common law, and such personal injury is well within the obligations of the sheriff's bond and the statute, declaring that "every official bond is obligatory on the principal and sureties thereon * * * for the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office as by his failure to perform, or the improper or neglectful performance of those duties imposed by law." (Italics supplied.) Code 1923, § 2612; Holland v. Fidelity Deposit Co. of Maryland et al., supra.
There is no civil liability, under the common law, as interpreted in this jurisdiction, against one who wrongfully or negligently causes the death of a human being; and hence no right of action exists under the common law therefor. The right of action is purely statutory. Hain v. Gaddy et al.,
Therefore, cases dealing with civil liability for personal injuries, not resulting in death, for which the common law gives a right of action, cannot be considered as apt authority to sustain the liability in this case.
The same is true as to decisions where the officer personally was guilty of the wrong, and the question presented for decision was not the officer's liability, but the liability of the sureties on his bond, such as Moore et al. v. Lindsay et al.,
In Hain v. Gaddy et al.,
To avoid the effect of this decision and uphold the judgment against the appellant Employers' Liability Assurance Corporation, the surety on the sheriff's official bond, appellee strenuously insists that the holding in Louisville
Nashville R. Co. v. Bogue,
The argument is, that the purpose of this act was not to prevent homicides, or to protect human life, but to give a right of action for pecuniary hurt or loss.
It is conceded that this statute was materially changed in bringing it forward into the Code of 1886, in that the provision for a right of action for personal injury was omitted. As originally enacted, it limited the right of action for "wrongful act or omission of any person" to the person guilty of the wrongful act or omission, but as to corporations, it conferred the right of action for the wrongful act or omission of "any officer or agent" of such corporation under the doctrine of respondeat superior. Hendrick v. Walton et al.,
Following this codification, the question of whether the damages recoverable were punitive or compensatory was fully considered by the court, all the justices participating, in Louisville Nashville R. R. Co. v. Bogue, supra, and it was there ruled that the statute authorized only the recovery of punitive damages. The statute was brought forward after that decision into the Code of 1923 as section 5695, without further revision, and the Bogue Case has been consistently adhered to in the subsequent decisions. Louisville N. R. Co. et al. v. Phillips,
On the appeal of Holland, in Holland v. Fidelity Deposit Co. of Maryland et al.,
"The inquiry presented therefore is whether the action is in case or trespass. The rule is that, when an agent commits a trespass when acting in the line and scope of his authority, but not authorized by the principal to commit the trespass, the agent is liable in an action of trespass and the principal in case, but that a joint action against them is not available. [Citing authorities.] *123
"This rule would control in the instant case if the liability of the sheriff for the acts of the deputies were dependent upon the ordinary principles pertaining to principal and agent or master and servant on the doctrine of respondeat superior. So the question is whether they apply in respect to a sheriff and his deputies, acting under color of the office of sheriff. It seems to be well settled that a different rule obtains. The distinction is variously expressed but leading to the same result. In Hereford v. Brentz,
"In King v. Gray,
"Indeed, such conception of the law seems to be general throughout the country, as appears in notes to 1 A.L.R. 236, and 35 Cyc. 1618. It is sometimes said that for such purpose, the deputy is the alter ego of the sheriff."
In Wise, Administratrix v. Curl et al.,
The holding in these cases clearly concludes to the effect that a deputy sheriff is not an agent or servant of the sheriff, and that the doctrine of respondeat superior applicable to the relation of principal and agent and master and servant does not apply.
After diligent examination of the authorities, the only case we have been able to find which holds a sheriff liable for the act of his deputy in wrongfully causing the death of a person is Johnson, etc., v. Williams' Adm'r,
In Howard et al. v. Caudill et al.,
The statute, section 5695, Code of 1923, is in derogation of the common law, creating a new punitive liability not recognized by the common law, and will not be extended by construction beyond the reasonable import of its language. Anderson v. City of Birmingham,
Our judgment is, that the Legislature in the enactment of the statute and its subsequent revision did not have in mind the relation of the sheriff and his deputies, and the sheriff and his bond are not liable for the wrongful act or omission of a deputy causing the death of a human being. The court, therefore, erred in overruling the defendants' demurrers to the complaint.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur. *124