Chandler v. Rutherford , 2 Indian Terr. 379 ( 1899 )

Thomas, J.

The facts set out in the complaint being admitted by the demurrer, the only question of importance in this case is, do the facts entitle the appellant to recover? The other assignments of error will be disposed of by the decision of this one question.

The whole case is stated in the amended or second paragraph of the complaint, and is substantially as follows: First. That appellant was a resident of the Northern district of the Indian Territory, and not a member of any nation or tribe of Indians. Second. That the appellees Rutherford, Turner, Robb, and Blackstone are’ residents of the Northern district of the Indian Territory, that Lankford is a resident of the Central district of the Indian Territory, and that Sparks and Williams are residents of the state of Arkansas. Third. That Rutherford was the duly appointed, qualified, and acting United States marshal for the Northern district of the Indian Territory, and that the other appellees were the sureties upon the official bond of the said Rutherford, as United States marshal aforesaid. Fourth. That on the 8th day of August, 1895, said United States marshal had in his office in the town of Muskogee, Indian Territory, one A. A. McDonald, as his duly appointed and acting chief deputy marshal, who, in the absence of said marshal, was fully authorized to act for and instead of Rutherford, the marshal, and to do and perform all the duties pertaining to the office of United States marshal. That on the 8th day of August, 1895, Rutherford, the marshal, was absent from his office in the town of Muskogee. That during his absence complaint was made by one Dave Purty to Chief Deputy Marshal McDonald of his (Purty) having had some horses stolen from him by one Flave Carver, and that said horse thief was then in said town of Muskogee. That Deputy Marshal McDonald went to the office of the United States commissioner in Muskogee for the purpose of obtaining a writ for said Carver, but, the commissioner being absent, no writ was obtained. That thereupon Chief Deputy Marshal McDonald, at the suggestion of the assistant United States district attorney for the Northern district of the Indian Territory, informed Dave Adams, one of Marshal Rutherford’s deputy marshals, that there was reasonable ground to believe that Flave Carver had committed the crime of “horse larceny,” and that it was believed that said Carver was then in the vicinity of the town of Muskogee. That Chief Deputy Marshal McDonald requested Deputy Marshal Adams to go with Dave Purty and arrest said horse thief, Carver. That Deputy McDonald arranged with Adams to meet him that night at a point near the post office in Muskogee. That Chief Deputy Marshal McDonald furnished Purty with a double-barrel shotgun, and shells loaded with BB or small-sized buckshot, That, upon Adams meeting the chief deputy marshal near the post office at the time appointed, Adams refused to undertake the arrest of Carver with Purty alone to assist him. That thereupon Deputy Marshal McDonald “got Joseph N. Walker to get his gun and go with said deputy marshal and said Purty to arrest said Carver. ’ ’ That neither the said deputy marshals nor the possemen had either a writ or other process for the said alleged horse thief. A start was made from the store near the post office in Muskogee, the searching party going up to the Missouri, Kansas & Texas Stock Yards in Muskogee, and there Deputy Marshal Adams secured two other possemen, Joseph Hayes and Bichard Brame, to go with him and assist in finding and arresting said Carver. That Adams with his then posse of four men, crossed over the said Missouri, Kansas & Texas Bailroad to the north end of Cherokee street, in Muskogee, where the appellant was walking along said street with a young lady. That Adams and his four possemen slipped stealthily up to within 20 or 80 steps of appellant and the lady with whom he was walking, and that without making announcement or proclamation of their character and purpose, without using reasonable diligence or any diligence whatever to ascertain whether the appellant 'was or was not Flave Carver, whom they were seeking to arrest, some one of the party called out, “Hey, there!” whereupon the appellant and the lady stopped for a moment, but, hearing no further call, proceeded on their way for a few steps, when some one of Deputy Marshal Adams’ party again called out, “Hey, there!” The appellant stopped, and as he was turning around to see who it was, or for what purpose he was being called, not knowing whether or not he was the party challenged, some one of Deputy Marshal Adams’ party fired upon and severely wounded the appellant with leaden bullets or shot, the appellant being wounded in the head, face, left shoulder, left arm, and back. That appellant was fired upon by Deputy Marshal Adams or some one of his posse while under the impression that appellant was the alleged horse thief, Carver. That by reason of his wounds appellant was confined to his bed from 17 to 20 days. ■ That during such confinement he suffered great bodily pain and mental anguish from said wounds. That he was compelled to pay out and expend large sums of money for nursing, doctor’s bills, and medicines in attempting to heal and cure himself of said wounds and injuries, and that the money so laid out and expended amounted to $257.50. That quite a number of the shot or bullets with which he was wounded are still in his body, and that he is thereby permanently injured. That two of said bullets are still in the appellant’s head, so lodged as to make it impossible to extract them, causing appellant to not only suffer seriously at present, but to apprehend serious trouble in the future. That, by reason of the wounds so received, the left arm of the appellant has become and is paralyzed to such an extent as to be practically useless. That the leaden shot or bullets still in appellant’s body are liable to give him serious trouble in future, — by reason of all of which the appellant claims to have been damaged in the sum of $25,000. "

There is no allegation in the complaint that Rutherford, the marshal, was present, knew of the expedition, or had in any way authorized it. The complaint does not allege that the possemen, or either of them, were ordered by Dave Adams, the deputy marshal, to fire upon appellant, nor is there any allegation that the firing upon the appellant was by the direction or under the authority of. said Deputy Marshal Adams.. The record in this case shows that the appellant was in no way connected with said larceny or said alleged horse thief, Carver, nor was he at the time charged with the commission of any crime, but, being a resident of Muskogee, was walking along the streets in company with a lady, as he might lawfully do.

That the appellant was wrongfully and unlawfully assaulted and wounded by some one, and that he suffered most grievous injuries by reason of such wrongful and unlawful assault cannot be questioned, and, if the law does not furnish him a complete remedy for his injuries and damages, it is woefully lacking in that protection which is constitutionally guaranteed to every citizen of the United States. But the innocent may not be made to suffer for the wrongs of the negligent and guilty. “It is unquestionably true,” as declared by the supreme court of the United States in the case of Rogers vs Marshal, 1 Wall. 644-654, “that a marshal is answerable for the misconduct of his deputy.” Still he cannot be held responsible for the illegal acts of said deputy, or of possemen acting under a deputy, unless such acts are performed at his instance or by his direction. The complaint shows that Marshal Rutherford was neither present at the time complaint was made by Purty to Chief Deputy McDonald that his horses had been stolen, nor did he know of or direct the organization of the posse, the search for the alleged horse thief, Carver, nor the shooting of the appellant.

In a well considered opinion by Justice Burford, of the supreme court of Oklahoma, in the case of Dysart vs Lurty, 41 Pac. 724, et seq., it is held that ‘ ‘where an officer, while doing an act within the limits of his official authority, exercises such authority improperly, or exceeds his official. powers, or abuses an official discretion vested in him, he becomes liable on his official bond to the person injured; but when he acts without any process, and without the authority of his office, in doing such act, he is not to be considered an officer, but a personal trespasser. The weight of authority seems to support the doctrine that sureties on an officia bond are only answerable for the acts of their principal while engaged in the performance of some duty imposed upon him by law, or for an omission to perform such duty.” Difficulty often arises in determining whether an officer acting officially exceeds his authority, or whether his acts must be regarded as those of an individual.

In the case of Lammen vs Feusier, 111 U. S. 17, 4 Sup. Ct. 286, the supreme court of the United States held the United States marshal liable on his bond upon seizing the property of one upon a writ of attachment issued against the property of another. This case would seem to support the doctrine that an officer will be held liable for acts done colore officii, but the case only follows the weight of authority, which is practically unanimous that an officer who, in attempting to execute a valid writ, levies upon the property of a third person, will be held liable for his acts. He is then acting officially, under process apparently valid, and exceeding his authority, rather than acting without any authority. This case is not in conflict with the ruling of the supreme court of Kentucky in Com. vs Cole, 7 B. Mon. 250, wherein it was held that sureties on a constable’s bond could not be held liable for money collected under false pretense of having executions in his hands, when in fact he had no such executions. In the latter case the officer was not acting officially, nor within the authority of his office, and his bondsmen had not undertaken to be responsible for his personal conduct.

The general rule seems to be that if a deputy is acting under a writ of process, and while attempting to execute the process he exceeds his authority and commits a wrong, or fails to perform the duty imposed upon him, his principal and the principal’s sureties shall be liable for any damages arising from such acts or omissions, or if he is acting without process, and under the orders and instructions or with the assent of bis superior, then the principal and sureties are liable. On the other hand, if the deputy assumes to act without process or without the knowledge or assent of his principal, and performs unauthorized acts or commits a wrong, whether negligently or maliciously, he will be liable for a personal trespass, but his principal and the bondsmen of the principal are not liable. There are some exceptions to, and modifications of, these general rules, but, as general principles, they are in harmony with the weight of adjudicated cases. Where an officer, though he assumes to act as. such, commits a wrong under circumstances where the law does not impose upon him any duty to act at all, the wrong is not a violation of any official duty, and consequently is not embraced within the sponsorship of the surety. See Hawkins vs Thomas, (Ind. App.) 29 N. E. 157.

The search for the alleged horse thief, Carver, by Deputy Adams and his possemen, was without a writ, and without any instruction from, or knowledge of, his principal, Rutherford, and the shooting and wounding of the appellant by the deputy marshal or one of his possemen was not in the discharge of any duty imposed upon them by law, and was simply a most flagrant and outrageous personal trespass, for which the assailant or assailants should have been indicted and punished; but Marshal Rutherford and the sureties on his bond are not, under the law, responsible for such unlawful and unwarranted assault made by Deputy Adams and his possemen upon the appellant. The demurrer to said complaint was properly sustained, and the decision of the lower court is therefore affirmed.

Clayton and Townsend, J. J., concur.