Opinion
6 Div. 704.
February 27, 1941.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Motley Motley, of Gadsden, and Coleman, Spain, Stewart Davies and H. H. Grooms, all of Birmingham, for appellants.
The complainant shows that the doctrine of respondent superior does not apply and defendants are not liable for the acts of the deputy. The defendant surety company is improperly joined in the action. It is not averred that the deputy was acting under color of his office. Demurrer to the complaint should have been sustained. Holland v. Fidelity Dep. Co., 225 Ala. 669, 145 So. 331; Giles v. Parker, 230 Ala. 119, 159 So. 826; Burge v. Scarbrough, 211 Ala. 377, 100 So. 653; Wise v. Curl, 177 Ala. 324, 58 So. 286. Appellants should have been permitted to qualify the jury as to membership in the C.I.O. Code, § 8662; Rose v. Magro, 220 Ala. 120, 124 So. 296; Burgess v. Singer S. M. Co., 30 S.W. 1011; Peterson v. State, 227 Ala. 361, 150 So. 156; Birmingham Elec. Co. v. Driver, 232 Ala. 36, 166 So. 701. The mere private act of the deputy sheriff, not done under color of office, does not impose any official responsibility or liability on the sheriff or his surety. American Sur. Co. v. First Nat. Bank, 203 Ala. 179, 82 So. 429; 57 C.J. 802. Appellee propounded certain interrogatories to appellants, and upon appellee's motion certain parts of the answers were stricken over appellant's objection, and after such parts were stricken, the interrogatories were offered in evidence. In this the trial court erred. Southern R. Co. v. Hayes, 183 Ala. 465, 62 So. 874; Sullivan Timber Co. v. Louisville N. R. Co., 163 Ala. 125, 50 So. 941; Prestwood v. Carlton, 162 Ala. 327, 50 So. 254; Allen v. Camp, 14 Ala. App. 341, 70 So. 290; Crymes v. White, 37 Ala. 549; Carwille v. Franklin, 164 Ala. 543, 51 So. 396; Louisville N. R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Prestwood v. Carlton, 162 Ala. 327, 50 So. 254; Rice v. Southern R. Co., 175 Ala. 69, 56 So. 587. The action should have been brought in the county of the residence of the defendant sheriff, a resident of the State, and in which county the act complained of occurred. Code, §§ 2647, 10467; 14 A.C.J. 1224.
Beddow, Ray Jones, of Birmingham, for appellee.
The complaint was not subject to the demurrer. Burge v. Scarbrough, 211 Ala. 377, 100 So. 653. The venue of the action was properly laid with branch summons to defendant Leath. Code, §§ 10471, 9418. The extent of examination of prospective jurors on voir dire rests largely in the discretion of the trial court. Rose v. Magro, 220 Ala. 120, 124 So. 296; Birmingham Elec. Co. v. Driver, 232 Ala. 36, 166 So. 701. Answers to interrogatories may be stricken when violative of the rules as to admissible testimony. First Nat. Bank v. Leland, 122 Ala. 289, 25 So. 195; Brotherhood v. Trimm, 19 Ala. App. 429, 97 So. 770.
This is an action against the sheriff and the surety on his official bond for damages caused by a trespass upon the person of the plaintiff committed by a deputy sheriff under color of his office as such and in the line and scope of his authority.
The complaint contains one count and is in form a tort action. This form of action is available under such circumstances, though the surety on the bond is sued jointly, and is liable by virtue of its contract. Hill v. Hyde, 219 Ala. 155, 121 So. 510; National Surety Co. v. Plemmons, 214 Ala. 596, 108 So. 514; Deason v. Gray, 192 Ala. 611, 69 So. 15; Holland v. Fidelity Deposit Co. of Maryland, 225 Ala. 669, 145 So. 131.
The one amended count of the complaint is in the following words and figures:
"The plaintiff claims of the defendant the sum of Ten Thousand ($10,000) Dollars as damages, for that on to-wit the 6th day of December, 1937, R. A. Leath was Sheriff of Etowah County, Alabama and Standard Accident Insurance Company was surety upon his official bond in the penal sum of Ten Thousand ($10,000) Dollars; and plaintiff further avers that on to-wit the 6th day of December, 1937, a duly authorized Deputy Sheriff one P. H. Handy, duly appointed by the said R. A. Leath, while acting in line with and within the scope of his employment as Deputy Sheriff while attempting to arrest and take the plaintiff into his custody as Deputy Sheriff of said County did wrongfully shoot this plaintiff through the right arm and immediately below the shoulder, thereby proximately causing this plaintiff to suffer the following injuries and damages:
"The plaintiff was temporarily disabled; plaintiff was permanently disabled; plaintiff was made sick, sore and lame for a long time; plaintiff incurred much and great expense for the services of physicians, surgeons, hospitals, drugs, medicines and bandages necessary in and about the treatment of his aforesaid injuries; plaintiff lost much time from his usual gainful occupation; plaintiff was caused to suffer much and great physical pain and anguish; plaintiff was caused to suffer much and great mental pain and anguish."
Ordinarily when an agent commits a trespass when acting in the line and scope of his authority, but not authorized by his principal to commit the trespass, the agent is liable in an action of trespass and the principal in case, but that a joint action against them is not available. City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389; Louisville N. R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103; Ex parte Louisville N. R. Co., 203 Ala. 328, 83 So. 52; Holland v. Fidelity Deposit Co. of Maryland, supra.
On the other hand, it is now well settled that a different rule obtains in respect to a sheriff and his deputies. The distinction is variously expressed but leading to the same result. In Hereford v. Brentz, 192 Ala. 465, 68 So. 350, 351: quoting from Rogers v. Carroll, 111 Ala. 610, 20 So. 602, that "in legal contemplation he [the deputy] and the sheriff were one officer, so far as third persons are concerned, as to all questions of civil responsibility," it was held that an action of trespass will lie against the sheriff for a trespass committed by his deputy. Holland v. Fidelity Deposit Co. of Maryland, supra.
Appellants insist that the one count in the complaint is defective in not alleging that the deputy was "acting under color of the office." True, the count does not use the words, "acting under color of office," but it does allege that "a duly authorized deputy sheriff one P. H. Handy, duly appointed by the said R. A. Leath, while acting in line with and within the scope of his employment as deputy sheriff, while attempting to arrest and take the plaintiff into his custody as deputy sheriff of said county did wrongfully shoot this plaintiff through the right arm, etc." These allegations are sufficient. Holland v. Fidelity Deposit Co. of Maryland, supra. Indeed, the quo modo, from which the conclusion arose that the deputy was acting under color of office, is alleged. The case of Giles v. Parker, 230 Ala. 119, 159 So. 826, is not in conflict with this holding. The Giles case was brought under the homicide statute, and in such case a different rule obtains. There was no error in overruling defendants' demurrers to plaintiff's complaint.
The venue of this action was properly laid in Jefferson County under Section 10471 of the Code of 1923, and a branch summons properly issued to R. A. Leath under Section 9418, Code of 1923.
Assignments of error Nos. 23 and 24 relate to the action of the court in denying to the appellants the right to question the jurors on their voir dire concerning their membership in the industrial organization commonly known as C. I. O. The rule in this state is that, the extent of the examination of prospective jurors upon their voir dire rests in the sound discretion of the trial court. We cannot say that the trial court has abused its discretion in declining the examination in this case. Rose v. Magro, 220 Ala. 120, 124 So. 296.
The plaintiff, under the provisions of Section 7764 et seq., Code of 1923, filed interrogatories to the defendants. The answers to some of the interrogatories contained patently illegal and not responsive testimony, and there was no error in striking this illegal evidence, nor in allowing what remained thereafter of the depositions to be read in evidence by the plaintiff. First Nat. Bank of Tuscaloosa v. Leland, 122 Ala. 289, 25 So. 195; Illinois Central R. Co. v. Nance, 16 Ala. App. 569, 80 So. 143.
The evidence was conflicting on the issues involved and the trial court was not in error in refusing to the defendants separately and collectively the general charge requested in writing.
We have carefully examined each written charge refused to the defendants, and find no reversible error. The charges were either erroneous or were covered by the court's oral charge. Section 9509, Code of 1923.
Likewise, we have examined separately and severally the assignments of error based on the trial court's ruling on the admission and rejection of evidence. Suffice it to say, we find no error in these assignments.
Nor can we say that the verdict is excessive.
Finding no reversible error, the judgment of the circuit court is affirmed.
Affirmed
GARDNER, C. J., BOULDIN and FOSTER, JJ., concur.