182 S.E. 880 | W. Va. | 1935
The Norfolk Western Railway Company and John Sutfin, *707
one of its special police officers, appointed by the Governor under authority of statute (Code 1931,
The plaintiff was shot and seriously injured between knee and ankle of the right leg as he was fleeing from arrest at the site of a moonshine still in said county. Three peace officers participated in the raid, to-wit, John Sutfin, W. R. Sutherland, who is likewise a special officer of the railway company and a defendant to this action, and Corporal R. C. Dilley, a state policeman.
Within a period of months, a large number of oil-containing steel drums of the railway company had been stolen from its right of way. Of that number, several were taken within a few days prior to the 29th of August, 1934. A superior officer of Sutfin's in the railway service directed him to investigate the matter. Sutfin went from his home at Kenova in Wayne County to Williamson in Mingo County and got in touch with Corporal Dilley who, together with two other state policemen, were on duty there. The matter was discussed and the sheriff of the county was called into the conference. It was suspected that the missing oil drums were being used by moonshiners in the Burning Creek section of said county.
On the following morning, August 29, 1934, in pursuance of said conference, the two railway police officers, Corporal Dilley accompanied by two troopers, and four deputy sheriffs proceeded together to the above stated community where they separated into three squads, one of which, composed of Sutfin, Sutherland and Dilley, went up Upper Burning Creek. After traveling about three miles in their automobile they left it and continued on foot. Within a short distance they detected the odor of wood smoke and of mash. Presently they came in sight of two stills, the lower one idle but the upper one, about fifty feet from the first, was in operation and attended by two men who took alarm and fled. One of them, name unknown to the officers, escaped; the other was the plaintiff, whose identity was likewise unknown until after he was taken into custody. As he started to run, at a distance of about 50 or 60 feet from the officers, he was commanded to halt but paid no *708 heed. Each of the railway police officers fired twice, Sutfin with a rifle and Sutherland with a revolver. The three officers testified that after the shots were fired, plaintiff disappeared around a turn in the little stream on which the stills were located, apparently uninjured, but that in a moment he called to them that he had been shot; that when plaintiff disappeared from their view he was still running fast; that with the injury from which they found him suffering when they went to him he could not have run from the bend in the stream to that point, therefore, they had not shot him; and that two other shots were fired by an unknown person in the vicinity. The plaintiff testified that instantly before he was shot he looked back and observed Sutfin with his rifle leveled at him, also that Dilley was in the uniform of a state policeman.
On behalf of the defendants, it is urged that the evidence does not sustain the theory that either Sutfin or Sutherland shot the plaintiff, and that in no event is there liability upon any of the defendants because the officers, in the discharge of their duty, were endeavoring to arrest a fleeing felon and did not use unreasonable force.
We are at a loss to determine from the record the basis on which the jury could say with any degree of certainty that it was Sutfin who shot the plaintiff. Corporal Dilley, called as a witness for the plaintiff, testified, as did Sutfin and Sutherland, that he saw the plaintiff running after the firing had ceased; that he was found wounded, and prone on the ground, 25 to 45 feet from where he disappeared from view; that his wound was so severe he could not have walked or run after receiving it. He received a compound, comminuted fracture of both bones of the right leg. Though his back was toward the officers as he ran, the bullet entered not from the rear but from the side. A section of bone and much tissue were torn away. There was at least one other armed person in the immediate vicinity because the officers heard two shots fired besides their own. Their testimony differs as to whether these shots were immediately before or immediately after the officers fired. On this showing, the plaintiff's testimony that as he glanced back he saw Sutfin with his rifle leveled at him, and Sutherland's testimony that his two shots were not fired *709 at plaintiff, would seem to be scant basis for a finding that Sutfin fired the shot that inflicted the injury. Corporal Dilley is emphatic in his testimony that the plaintiff was shot "after he had disappeared" from the view of the officers. But even if this testimony is to be disregarded and the possibility of the wound's having been inflicted by an unknown person be eliminated, and the responsibility be placed on the officers, we are unable to perceive how it can be said with assurance that it was Sutfin and not Sutherland who fired the bullet which struck the plaintiff. The problem then is narrowed to the query as to whether the railway company is liable in damages to the plaintiff, on the hypothesis that he was unjustifiably wounded by one of the company's special police officers.
At the time of this affair, were the two special officers acting as agents of the Norfolk Western Railway Company, or were they acting for the people in the discharge of the duties of public officials?
Our statute which provides for the appointment of special police officers by the Governor, at the instance of steam or electric railway companies, contains this language: "Every police officer appointed under the provisions of this section shall be a conservator of the peace within each county in which any part of such railroad may be situated, and in which such oath or a certified copy thereof shall have been filed with the clerk of the county court or other tribunal established in lieu thereof; and, in addition thereto, he shall possess and may exercise all the powers and authority, and shall be entitled to all the rights, privileges and immunities, within such counties, as are now or hereafter may be vested in or conferred upon the regularly elected or appointed constables of such county." Code 1931,
An individual commissioned by the Governor as a special police officer occupies a dual role. Whether in a given instance, he acts as the private agent of his employer or as a public official will depend on the attending circumstances. It is a general proposition that such special officer is deemed to act in pursuance of his public duty when he is attempting to vindicate the law and bring violators thereof to justice. Although *710
paid by his employer, he is prima facie a public officer and not a private servant. McKain v. Railroad Co.,
But if, while acting within the scope of his private employment, such special officer wrongfully inflicts injury upon another, the employer will be liable. Layne v. RailwayCo., supra; Moss v. Railroad Co.,
Special police officer Sutfin, at the direction of a superior officer of the railway company, instituted an investigation to ascertain, if possible, who had stolen certain steel drums belonging to his employer. Then, receiving confidential information that probably moonshiners in a certain section of Mingo County had taken the drums, he made contact with the state police and the sheriff, with the result that a posse was formed to make a raid on the moonshiners. The corporal of the state police testified that he had been receiving complaints that illicit distilling was being carried on in the Burning Creek section of Mingo County. It was in pursuance of the official arrangement noted that the still was raided where the plaintiff was found and wounded. The activities of the posse were directed at moonshiners, not at petty thieves, nor at violators of rules or regulations of the railway company. The primary purpose of all the officers concerned was to destroy illicit distilling outfits and to arrest violators of the law against such practices. In so proceeding, they were undertaking to uphold the dignity of the law. In the role in which they were acting, the two special police officers were no less public officials than were their associates in the enterprise, and in our judgment, were clearly within the purview of the *711 above quoted provision of the statute. Considering that they were acting as public officials, their employer is not liable for their conduct.
Proceeding further on the hypothesis that one of the special officers shot the plaintiff, and approaching the legal problem from another angle, the query arises whether such conduct was justifiable. Under the circumstances, was it reasonably necessary that force be employed to prevent the culprit's escape? Such question is generally one for jury determination, but, as with other jury questions, there is judicial supervision. No verdict in any case will be permitted to stand which is clearly against the weight of the evidence. Let us appraise the situation.
The officers came upon the plaintiff and his associate committing a felony against both the federal government and the state. With respect to arrests of felons, some of the courts have made distinction between capital felonies and inferior felonies. State v. Bryant,
Within reasonable limits, the degree of force to be employed by an arresting officer is a matter in his discretion. 5 Corpus Juris, page 424. In making an arrest, the officer is presumed to have acted in good faith, and when his conduct comes later to be weighed in the coolness of judicial surroundings, and perhaps in a conference of the judges of an appellate tribunal, *712
the mistake must not be made of evaluating the conduct solely from the viewpoint of the later environment. The appraisal must be made in the light of the pressing circumstances as the officer saw them. Village of Barboursville ex rel. Bates v.Taylor,
The plaintiff was a fleeing felon whose identity was unknown to the officers. In the rugged surroundings of a mountain gorge there was no possibility of overtaking him. When he refused their command to halt, should they have permitted him to depart unscathed? Such course not only would have involved the risk of his never being brought to justice, but would have involved personal risk to themselves in the possibility of his ambushing himself on the mountainside and firing upon them. It is a matter of common knowledge that throughout the years men who secrete themselves in the fastnesses of the mountains for the purpose of illicit distillation of spirituous liquors have not been hesitant to take the lives of officers attempting to bring them to justice. Changing sentiment with regard to prohibition does not render moonshining any less a felony at one time than another. In the case of Stinnet v. Commonwealth of Virginia,
In the light of all that precedes, we reverse the judgment of the trial court, set aside the verdict, and remand the case for further proceedings.
Judgment reversed; verdict set aside; remanded.
