Dean v. Brannon , 139 Miss. 312 ( 1925 )

^* Headnotes 1. Corporations, 14a C.J., Section 4121; On jurisdiction of state court over foreign corporation, see note in 70 L.R.A. 691; 12 R.C.L. 108; 2 R.C.L. Supp. 1393, 4 R.C.L. Supp. 747; 2. Appeal and Error, 4 C.J., Section 2709; On liability of sheriffs or other officers for acts and omissions of their deputies while acting officially or under color of the office, see note in 1 A.L.R. 236; 12 A.L.R. 981; 24 R.C.L., pp. 981, 982; 3 R.C.L. Supp., p. 1391; 4 R.C.L. Supp. 1562; 5 R.C.L. Supp., p. 1302; 3. Sheriffs, 35 Cyc., p. 1906. Mrs. Edna Brannon, appellee, brought this action in the circuit court of Forrest county against appellants A.E. Dean, sheriff of George county, and the surety on his official bond, United States Fidelity Guaranty Company, for damages for an injury alleged to have been suffered by appellee on account of being shot with a pistol in the hands of a deputy of said sheriff while he and others representing the sheriff were engaged in the performance of an official duty of such sheriff. The action was on the bond of appellant Dean, as sheriff, and the surety thereon, United States Fidelity Guaranty Company, alleging a breach of the bond by the sheriff because of the tort aforesaid having been committed on her by his deputies and assistants. There was a jury and verdict and judgment for appellee for two thousand five hundred dollars, from which appellants prosecute this appeal.

There are only two questions that we consider of sufficient gravity to call for a discussion. They are: (1) That the trial court erred in not changing the venue on the application of appellant Dean to George county, of which county he was a resident citizen and freeholder; (2) whether or not, under the evidence in the case, appellants were entitled to a directed verdict on the ground that the evidence did not tend to establish liability on their part.

We will discuss these questions in the order stated, and in doing so develop the controlling facts out of which each question arises.

(1) Appellant Dean was sheriff of George county and a resident citizen and freeholder of that county. Appellant United States Fidelity Guaranty Company was a foreign corporation doing business in this state, with an office and place of business and agent on whom, under the laws of this state, process could be served, in Forrest county, as well as other counties in this state. This action was brought in Forrest county. Appellant Dean alone made application to change the venue to George county. Section 707, Code of 1906 (section 486, Hemingway's Code), provides, among other things, that — "Civil action of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant, or any of them, may be found. . . . If a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, the venue shall be changed on his application, to the county of his household and residence."

It will be noted that the statute provides that the action shall be commenced in the county in which any one or more of the defendants may be found. The question is whether or not the appellant, United States Fidelity Guaranty Company, came within that definition; in other words, whether or not it was a defendant in this cause found in Forrest county, where the action was brought.

Appellants contend that appellant United States Fidelity Guaranty Company, being a foreign corporation, although having a place of business and an agent in Forrest county subject to process, was not found in that county in the meaning of this statute. We think this question is controlled by IndianolaCotton Oil Company v. Crowley, 121 Miss. 262, 83 So. 409. In that case the action was brought in Sunflower county, against Indianola Cotton Oil Company and J.H. Petty. The cotton oil company was a domestic corporation, and was located and doing business in Sunflower county, while the other defendant, Petty, was a resident freeholder of Leflore county. The defendant Petty made application under the statute being considered to remove the cause to Sunflower county. The court held that the cotton oil company was a defendant found in Sunflower county within the definition of the statute. The difference between that case and this is that appellant United States Fidelity Guaranty was a foreign corporation instead of a domestic corporation. But it had an agent subject to process and a place of business in Forrest county. It is true that in discussing the question in that case the judge writing the opinion stated that the cotton oil company was domiciled or resided in the county in which the suit was brought. The court, however, did not mean to decide, and did not decide, that domicile or residence was determinative of the question whether the action had been brought in the right venue. The statute does not provide that suit may be brought where any one of the defendants may be domiciled or reside. It provides that it may be brought where any one or more of the defendants may be found. We hold that for the purposes of suit appellant United States Fidelity Guaranty Company was just as effectually found in Forrest county as if it had been a domestic corporation with its principal place of business in that county. Just as much so as the Illinois Central Railroad Company, a foreign corporation, is found, for the purpose of suit, in every county in this state through which it runs and has an agent subject to process.

(2) In determining the question whether or not appellants were entitled to a directed verdict, the evidence must be treated as proving every fact favorable to appellee's case which it established either directly or by reasonable inference. So viewing the evidence, which was believed by the jury, the following case was made on behalf of appellee:

On the evening of the 30th of June, 1923, at the usual hour for religious services at country churches in this state at that time of year, appellee, with her husband and infant child six weeks old in her arms, and their three other children, and three children of a sister of her husband, were driving in their Ford truck from their home in George county to Rock Creek Church, to attend preaching. Appellee, her husband, her infant child, and one of her other children were on the seat of the truck. Her husband was driving. It was dark. They were going south in a lane. There was no pretense that they were violating the law in any respect whatever. On the contrary, as stated, they were on a mission quite the reverse. As they were passing through the lane James Goff, at that time marshal of Lucedale in George county, stepped out in front of the truck with a flash light in his left hand, which he waved, and a pistol in his right hand, and commanded Mr. Brannon, the driver, to halt. His command was not promptly obeyed, and Goff thereupon fired his pistol toward the occupants of the truck, shooting appellee, Mrs. Brannon, the bullet passing through her arm, entering her body near her right breast, and going through the body and lodging under her shoulder blade. Appellee exclaimed that she was shot. Goff said he made a mistake, and "shot into the wrong crowd." He also said that appellee was not shot because the cartridge was a blank cartridge. He learned, however, in a moment, she was shot.

This case was tried in November, 1924, more than a year after appellee was shot; the evidence showed that the bullet had never been removed from her body; that she still suffered; and that her injury would probably be permanent. Appellant Dean, the sheriff of George county, was not present at the shooting. There were present, besides James Goff, the marshal of Lucedale, who did the shooting, Ollie Ward, appellant's chief deputy, and one Passon. Appellant Dean had information that "the Shepherd boys and A. Arnold" were expected to pass south that night through the lane where appellee was shot in a Ford truck, with intoxicating liquors therein, in violation of law, and requested his deputy, Ward with Goff and Passon, to take the necessary steps to hold up and search the truck when it appeared, and make the necessary arrests which such search might call for under the law. Accordingly Goff went before a justice of the peace, made the necessary affidavit, and obtained a search warrant to search the Ford truck of "the Shepherd boys and A. Arnold" for intoxicating liquors. The sheriff's deputy, Ward, took Goff, who had the search warrant in his possession and retained it to the end, with the knowledge of Ward, and Passon in his car to the lane where appellee was shot. Between them they arranged for the holding up and search of the expected truck as follows: The truck was expected to go south. Ward took his stand toward the north end of the lane while Goff and Passon took their stand in the lane south of Ward. It was understood between them that when the truck should be discovered by Ward he would strike a match, which should be a signal to Goff and Passon that the truck for which they were on the lookout was approaching, and that thereupon Goff and Passon were to hold up the truck and make the necessary search for the liquors. Ward, Goff, and Passon claimed that they took the truck in which appellee and her husband and party were traveling to be the one for which they were lying in wait, and that for that reason the shooting resulted. Neither Goff nor Passon was regularly deputized in writing as deputy sheriff. Goff, however, had frequently, at the request of the sheriff, assisted the latter in "making raids" for intoxicating liquors and stills possessed and operated in violation of law.

Appellants' position is that they are not liable for the shooting of appellee, because Goff, who did the shooting, was not a legal deputy sheriff; and, as we understand, appellants contend that, even if he was a legal deputy, the sheriff and his bondsman are not responsible for his act because he was acting beyond the scope of his powers.

It is true that section 4664, Code of 1906 (section 3081, Hemingway's Code), provides that deputy sheriffs shall be appointed in writing and subscribe to an oath to faithfully execute the duties of their office, etc. But our statutes are not the source of all the powers of a sheriff; many of his powers are of common-law origin. He may summon a posse comitatus. He may summon one or more bystanders, when necessary, to assist him in the execution of process; he may summon and take with him assistants or bailiffs to execute process and make arrests, and such summons may be verbal and not in writing. And a sheriff's chief deputy is undersheriff, and acts in the place of the sheriff in his absence, as fully as the sheriff can act himself. 3 Bouvier's Law Dictionary, Rawles' Third Revision, pages 3058-3059; 24 R.C.L., pp. 916-924, inc., sections 6-13, inc.

Even though it be true that as between the sheriff and Goff and Passon, the latter were not legal deputies, nevertheless, under the law, they were de facto deputy sheriffs acting under the summons of the sheriff, and also his undersheriff, Ward. As to the outside world dealing with such deputies the sheriff is estopped to deny that they were legally appointed. He is bound by their acts just as effectively as if they had been regularly appointed deputy sheriffs. Pickens v. McNutt, 12 Smedes M. 651; Alabama, etc., R.R. Co. v. Bolding, 69 Miss. 255, 13 So. 844, 30 Am. St. Rep. 541. And, furthermore, under the facts of this case, it stands exactly like it would have if the sheriff had been present himself and had struck the signal match. His deputy, the undersheriff, Ward, was present with full authority to act in his place. And, according to the evidence on behalf of appellee, which was believed by the jury, the sheriff had expressly commissioned all three of them to go on that night's search.

Of course, it is true that the sheriff did not authorize either Goff, Passon, or Ward to hold up and search the truck in which appellee was riding, and shoot her. But that is not the criterion. Ward, the undersheriff, and his assistants were acting within the general scope of their authority. They thought they were holding up for search the truck of "the Shepherd boys and A. Arnold." But it developed that they were mistaken; that they had "shot into the wrong crowd." In other words, it may be conceded that they exceeded their authority. Nevertheless that did not exonerate the sheriff and his bondsman from liability. It does not need the citation of authority to support the proposition that an agent acting within the general scope of his powers binds his principal, even though he violates instructions and steps beyond his authority.

We find no merit in the other questions argued on behalf of appellants.

Affirmed.