delivered the opinion of the Court.
This suit was brought by James A. Lunsford, as nest friend for M. B. Lunsford, a minor, against Andy Johnston, superintendent of the workhouse for Knox county, Tennessee, Sam Hall, a guard, and others, to recover damages for personal injuries inflicted upon M. E. Lunsford, a prisoner at the workhouse, caused by the said Sam Hall shooting him while attempting to make Ms escape. Judgment was rendered ag'ainst Sam Hall, but the suit was dismissed as to Andy Johnston and the surety company on his bond. The case was determined by the court of civil appeals upon an appeal to that court, where the judgment of the lower court was affirmed.
The case is before this court upon certiorari. The only error assigned is, in substance, that there is no evidence to support the judgment of the court.
The position of the plaintiff is that-Andy Johnston, as superintendent of the workhouse, was not performing a governmental duty in the employment of Sam Hall as a guard, and that the relation of master and servant existed between them, and that therefore Johnston and his official bondsmen are liable in damages to M. E. Lunsford, because the law knows only the superior officer in such cases.
The proof shows that M. E. Lunsford was serving a workhouse sentence for a misdemeanor, and that he was shot by one Sam Hall, a guard at the Knox
The proof shows that Johnston was not present when the shooting was done, and that he knew nothing about it until afterward.
The defendant Sam Hall was employed by the road commission, or rather by the defendant Andy Johnston, with the advice and approval of his associates, pursuant to said act. These guards are paid for their services by the county, and are subject to the orders of the superintendent of the workhouse. Hall, therefore, was not a servant of the defendant Johnston at the time he did the shooting. Johnston was not acting in his individual capacity in selecting Hall as a guard, but in an official capacity and as an agent of the county in obedience to his statutory duty, and he was therefore performing a governmental duty. A public officer is not responsible for the wrongful act of a subordinate appointed by him under proper legal authority, unless he directed such wrongful act to be done, or is guilty
Many other cases and authorities might be cited.
We think clearly under the well-recognized authorities on the subject that a public officer is not liable for the acts or omissions of his subordinates employed by him or working under his direction, unless they are acting in his private service, but these subordinates themselves are considered as servants of the government. We do not mean to hold that there would be no personal liability in cases of negligence or want of reasonable care in the selection of subordinates, but that question does not arise, inasmuch as no facts are shown proving a dereliction upon the part of Johnston in this respect. The defendant Hall was acting without any authority to do this act, but on the contrary in violation of instructions. He had been instructed by his superiors not to shoot any prisoner.
The rule'upon which sheriffs are held to be liable for the acts of their deputies is based upon the fact that the deputy is acting in a personal capacity as the
Affirmed.