13 N.E.2d 736 | Ohio Ct. App. | 1936
This appeal presents the question as to whether a person who is called upon orally by a deputy sheriff, in the absence of the sheriff and other deputies, and is informally deputized by him to assist *320 in the making of an arrest of one reputed to be dangerous, and is killed in the performance of that project in an automobile accident when returning with the prisoner, and whose estate is being compensated by the county for his services, is an employee of the county, under the provisions of the Workmen's Compensation Law, whose dependents are entitled to participate in the State Insurance Fund?
On Sunday evening, January 7, 1934, Verne T. Mitchell was a guest in the home of Martin Pinney, a duly appointed deputy sheriff of Delaware county. The night was cold, dark and stormy. At the time, the sheriff and other deputies were engaged upon other business pertaining to their office and were not available. Pinney was called upon by telephone to go at once to the farm of an intoxicated person, some six to eight miles from the county seat, and arrest the inebriate. The necessity for haste lay in that he might injure his wife and family. Pinney had prior knowledge that the offender was a dangerous person when intoxicated. Pinney previously had been authorized to deputize any person to assist him in his official duties "on occasions when he needed help."
When the deputy left the telephone he stated that he would have to have help in making an arrest. Whereupon Mitchell volunteered to assist and Pinney responded: "In the name of the law, you are a deputy sheriff." They then proceeded to the country, made the arrest and upon the return Mitchell was killed in an automobile wreck. It is evidenced that the sheriff sanctioned payment to Mitchell's estate for his service, and that the county official allowed, and the county paid, the claim. Application was made to the Industrial Commission for compensation. The request was allowed and partially paid. From the record it further appears that upon a subsequent hearing the commission's finding was rescinded, the claim disallowed and *321
further compensation denied. Thereafter an appeal was perfected to the Court of Common Pleas of Delaware county, and upon trial to the court, judgment was entered adverse to the commission which appeals to this court upon questions of law. It is maintained that the trial court erred in overruling the commission's motion for judgment in its favor and in entering judgment adverse to it. The commission's action on rehearing and the appellant's reason for reversal were then and are now predicated upon the adjudication of Industrial Comm. v. Turek,
Without doubt this section determines the only way in which permanent or continuing deputies may be created. There is a further provision (Section 2833, General Code), however, which contemplates in part that exigencies may arise when a sheriff and his duly appointed force are not able to cope with the necessity of a particular temporary situation. It gives recognition to the fact that a posse comitatus may sometimes be necessary. It reposes in the sheriff the power to determine when such a necessity exists. The section reads in part: "Each sheriff shall preserve the public peace and cause all persons guilty of breach *322 thereof, * * * commit them to jail * * *. In the execution of the duties required of him by law, the sheriff may call to his aid such person or persons or power of the county as may be necessary. * * *"
Appellant properly points out that this section must be read in conjunction with Section 12857, General Code, wherein it is declared: "Whoever, when called upon by a sheriff, coroner, constable or other ministerial officer to assist in apprehending a person charged with, or convicted of, a criminal offense, or in securing such person when so apprehended, or in conveying him to prison, neglects or refuses so to do, shall be fined not more than fifty dollars."
It cannot be said that the omission of the words "deputy sheriff" from these statutes presupposes that only the sheriff was intended, for it has long been recognized that a sheriff and his deputy occupy but a single office, and a deputy, when properly appointed, as was Pinney, is vested with power and authority to perform every ministerial act that his principal can perform. See Haines v. Lindsey,
Let us now consider the appellant's assertion that an emergency did not exist. The Turek case, supra, distinctly recognizes that in a pressing necessity a police officer might call upon one for aid. The court *323 states clearly in its consideration of the facts before it and Section 12857, General Code, that: "* * * the statute was enacted for the purpose of enabling an officer to obtain immediate assistance when suddenly confronted with a dangerous emergency in apprehending, securing or conveying a person charged with, or convicted of, a crime. This traffic patrolman was in no such dire straits when at four o'clock in the afternoon he requested the plaintiff to accompany him that night. On the contrary, for four and one-half hours they patrolled the village streets in the usual manner, before they happened to have their attention attracted by a sound which they supposed was caused by chicken thieves."
The facts of the Turek case further disclose that the claimant had performed like traffic duty "around six or ten times" over a period of two months and that on the first of these trips he was "sworn in" by the traffic patrolman. Surely the facts in that controversy are not the facts in the present instance. Here, Pinney had a hurried call to go far into the country on a cold, stormy, dark, winter night to arrest a drunken man who might harm his family and whom he knew to be dangerous when in his cups. Was Pinney to wait until he reached an isolated farm on such a night, where other men were unlikely to be found, before calling for aid if dire straits confronted him? We think not. It is our judgment that an emergency was in the offing and did exist, and that he had a right to determine the necessity for immediate aid when he had prior warning of the dangerous propensity of the person he was about to take into custody.
The Supreme Court of the state of Wisconsin has twice considered the precise inquiry now before this court. In Villageof West Salem v. Industrial Commission,
"The term `employee,' `workman,' and `operative' as used in this act, shall be construed to mean:
"1. Every person in the service of the state, or of any county, city, township, incorporated village or school district therein, * * * under any appointment or contract of hire, express or implied, oral or written, * * *."
In the later case of Vilas County v. Industrial Comm.,
Millard County v. Industrial Comm.,
There remains but one further case directly in point. Our search discloses no case to the contrary. In County of Monterey
v. Rader,
To our notion the Turek case, supra, is sound in logic and in its conclusion. By reason of the dissimilarity of its facts with those of this case it is not authority for a reversal of this cause. The judgment is affirmed.
Judgment affirmed.
LEMERT, P.J., and MONTGOMERY, J., concur. *326