Jacobson v. McMillan

AILSHIE, J. In July, 1940, Grace Wark O’Connor was living separate from her husband, Dan O’Connor, at Rathdrum. Being apprised of her husband’s intention to shoot her and other members of her family, Mrs. O’Connor took refuge in the residence of C. F. Hess. While attempting to protect Mrs. O’Connor, Hess was assaulted by O’Connor discharging a loaded gun at him. August 10, 1940, Hess filed a criminal complaint against O’Connor and the latter was arrested by Sheriff McMillan and taken before the probate judge of Kootenai county. After a preliminary hearing, August 27th, and by regular commitment, O’Connor was taken into custody and confined in the county jail. September 7th, information, charging O’Connor with assault by a deadly weapon, was filed in the district court by the prosecuting attorney; no trial was held and no bond furnished for O’Connor’s release; and the order of commitment has never been rescinded nor had O’Connor been legally discharged. It appears that O’Connor was suffering from a mental and physical disease known as paresis, which “rendered him mentally deranged and dangerously insane.” September 25, 1940, Sheriff McMillan caused a deputy to take the prisoner out of the county and deliver him to defendant Cromwell, as superintendent of the State Hospital South at Blackfoot; that Superintendent Cromwell undertook to detain the prisoner, to make observations as to his mental and physical condition, and to return him to Sheriff McMillan. The material charging part of the complaint is set out at length in the footnote. 1 *354 Plaintiff Jacobson was employed by Mrs. O’Connor to perform manual labor “and, as said Dan O’Connor well knew, to furnish her and her family with protection against *355 the said Dan O’Connor.” May 3, 1941, O’Connor, having secured a 12-gauge shotgun, proceeded to the residence of his wife and her family near Cataldo, Shoshone county, and *356 began shooting, thereby wounding Jacobson and causing him pain and suffering, and killing John Sablack. Two separate actions were filed April 10, 1942: One by plaintiff Jacobson, praying for damages against defendants, S. J. McMillan and his surety, Aetna Casualty and Surety Company, and James O. Cromwell, superintendent of the State Hospital South, and his surety, National Surety Corporation, for wounds and injuries to plaintiff as the proximate result of negligence by the sheriff and superintendent, and violation of the order of commitment of said O’Connor; the other action was for the killing of Sablack under the same circumstances and at the same time and place as Jacobson was injured. Separate demurrers were filed by each of the parties to amended complaints. Demurrers were both general and special, alleging (1) that facts stated do not constitute a cause of action; (2) that there was a misjoinder of parties defendant; (3) that the complaint was ambiguous, indefinite, and uncertain; and further setting out special defects directed to the insufficiency of the complaint. The court entered separate orders July 2, 1942, sustaining the demurrers and giving plaintiff ten days to further plead or amend the complaint. Thereafter, on application of counsel for defendants, plaintiff having failed to file an amended complaint or to further plead in the action, judgment of dismissal with prejudice was entered. From the judgments of dismissal and from the orders sustaining demurrers, this appeal is taken. *357 An analysis of paragraph 10 of appellant’s complaint convinces us that appellant undertook, for hire, the risk, from the results of which he now complains. He alleges: “That the plaintiff was at all times mentioned herein an employee of said Grace Wark O’Connor and that his duties were to perform manual labor for the said Grace Wark O’Connor and, as said Dan O’Connor well knew, to furnish her and her family with protection against the said Dan O’Connor.” The foregoing is immediately followed by the allegation: “That, as a proximate result of the negligence and violation of the order of commitment hereinbefore referred to, . . . . the said Dan O’Connor, acting under insane and uncontrollable impulses, possessed himself of a shotgun and proceeded to the residence of Grace Wark O’Connor .... and began to shoot at them, and did, with said shotgun, at such time and place shoot the plaintiff.” It is clear from the complaint, that appellant was apprised and knew of O’Connor’s affliction with homicidal insanity; and that he knew that O’Connor was “mentally deranged and dangerously insane” ; and that the assault was the result of “uncontrollable impulses.” He further alleges that O’Connor “intended to shoot and would shoot Grace Wark O’Connor, the members of her family, and any person, including the plaintiff, who should attempt to protect her and the members of her family from a felonious assault by said Dan O’Connor.” Possessed of such knowledge, appellant took employment and voluntarily placed himself in a position, subjecting himself to any attack that might be made by O’Connor. In cases of personal injury, the law looks to the proximate and not the remote cause. (Oakland Bank of Savings v. Murfey et al., 68 Cal. 455, 9 P. 843, 847; 62 C. J., p. 1115, sec. 30.) The proximate cause of appellant’s injuries was his acceptance of employment, going to and remaining at the place when and where he knew the offense was likely to be committed, if at all. Here the proximate and remote cause concurred at one and the same time and resulted in the tragedy. In the absence of either one, the assault would not have occurred. Respondents were in no way responsible for appellant’s presence at the home of Grace Wark O’Connor and neither directly nor indirectly subjected appellant to the danger from which he suffered. When read and examined in a practical way, it *358 seems clear that the sheriff received this prisoner under commitment from the probate court to await trial on the charge of assault with a deadly weapon. As to what, if any, order was made by the district court, in relation to O’Con-nor’s custody, after filing of the information by the prosecuting attorney, does not appear. It is quite apparent that the sheriff, acting in good faith, sent O’Connor to the hospital at Blackfoot for the purpose of observation, examination and any possible treatment, and with a view to discharging his duty toward both the prisoner and the public as well. (Kusah v. McCorkle, 100 Wash. 318, 170 P. 1023, 1025, L.R.A. 1918C, 1158.) In Cornell v. Mason, 46 Ida. 112, this court sustained a judgment of ouster under sec. 19-4215, I. C. A., against a sheriff for willful neglect of duty, and held that “bad faith” must be shown in such cases. While the commitment required the sheriff to safely keep the prisoner until he was ordered otherwise by the court, it was also his duty to safeguard the prisoner and protect his health, both mentally and physically, in so far as he could do so. The duties of a peace officer, who has custody of a prisoner, are two-fold, (1) to the public and (2)'to the prisoner. (Kusah v. McCorkle, supra; McPhee v. U. S. F. & G. Co., 52 Wash. 154, 100 P. 174, 175, 132 Am. St. 958; Riggs v. German, 81 Wash. 128, 142 P. 479, 480.) Under such circumstances, he owes no more duty to one member of the public than to another. (Yaselli v. Goff, 12 F. (2d) 396, 404, 56 A. L. R. 1239, 1250; affirmed, 275 U. S. 503, 72 L. ed. 395; 43 Am. Jur., sec. 272, p. 84.) Any violation on the part of the sheriff, of his duty to keep a prisoner charged with a crime, is answerable to the public; and he is subject to indictment or information for removal from office, for wilful, negligent violation of such duty. (Sec. 19-4215, I. C. A.; Corker v. Pence, 12 Ida. 152, 160, 85 P. 388.) That right, however, does not inure to individuals. (Worden v. Witt, 4 Ida. 404, 407, 39 P. 1114, 95 Am. St. 70; McPhee v. U. S. F. & G. Co., supra; South v. State, 15 L. ed. 433, 435.) It rests with the public and must be exercised by the prosecutor or a proper party on behalf of the state. (Secs. 19-4201-19-4215, I. C. A.; Pouting v. Isaman, 7 Ida. 283, 286, 62 P. 680; Archbold v. Huntington, 34 Ida. 558, 565, 201 P. 1041; see, also, Rankin v. Jauman, 4 Ida. 53, 36 P. 502; Walton v. Channel, 34 Ida. 544, 204 P. 665.) *359 In Worden v. Witt, supra, Justice Huston quoted with approval from Cooley’s work on Torts as follows: “ ‘. . . . if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual, injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages.’ ” In South v. State of Maryland, 15 L. ed. 433, 435, the supreme court of the United States has said: “The powers and duties .... exercised by the sheriff are not strictly judicial; but he may be said to act as the chief magistrate of his county, wielding the executive power for the preservation of the public peace. It is a public duty, for neglect of which he is amenable to the public, and punishable by indictment only.” (Italics supplied.) An individual may have a civil action against the officer for failure to serve civil or quasi-civil process or for any malfeasance or misfeasance in the discharge of his official duty in the execution of civil process coming to his hands. (57 C. J., p. 804, sec. 206.) A different situation appears with reference to respondent Cromwell as asylum superintendent. So far as he is concerned, the complaint alleges that he received the prisoner “and explicitly undertook to detain such prisoner and make observations as to his mental and physical condition and then to return him to the defendant S. J. McMillan to be held in the Kootenai County jail for trial.....” The complaint shows this was a personal understanding and agreement between the sheriff and the superintendent made for the benefit primarily of the prisoner. It was not an agreement between the officers and appellant. Apparently the superintendent received no order or process for holding the prisoner, though he may have been justified in receiving him, under the provisions of chap. 151, sec. 1, Í939 Sess. Laws. It does not appear, however, that he could have in any way anticipated that O’Connor would escape and travel some 600 miles from Blackfoot to Cataldo and commit the offense of which appellant complains; nor does it appear that the superintendent had the legal authority to detain him unless it may have been acquired under the provisions of chap. 151, sec. 1, supra. *360 While the complaint charges that the respondents, McMillan and Cromwell, failed to detain O’Connor in prison or confinement and “wantonly permitted the said O’Connor to remain at large . . . no facts or circumstances are alleged that would in any way indicate or from which an inference could be drawn, that their conduct was “wanton”, i. e., “a reckless disregard for the safety of others.” Cases arising out of failure to protect a prisoner from a mob: (Asher v. Cabell, 1 C. C. A. 693, 2 U. S. App. 158, 50 Fed. 818; Ex parte Jenkins, 25 Ind. App. 532, 58 N. E. 560, 81 Am. St. R. 114) or injury to prevent escape (Thomas v. Kinkead, 55 Ark. 502, 15 L. R. A. 558, 29 Am. St. R. 28, 18 S. W. 854; Brown v. Weaver, 76 Miss. 7, 42 L. R. A. 423, 71 Am. St. R. 512; 23 So. 388) ; or injury in making arrest, (Helgeson v. Powell, 54 Ida. 667, 34 P. (2d) 957) ; or failure to hold prisoner for debt (Gural v. Engle, 128 N. J. L. 252, 25 A. (2d) 257, 262) rest upon an entirely different basis and principle of personal responsibility from that here involved. The acts of the sheriff and the superintendent, in permitting O’Connor to escape and be at large, were only a remote cause in comparison with the negligence of appellant, which could not have been reasonably foreseen or anticipated by either of respondents; whereas, appellant (according to his complaint) had every reason to believe that he would be attacked by O’Connor, if the latter should escape or be released and found appellant at the O’Connor residence. He hired to take the risk. (3'8 Am. Juris., p. 845, sec. 171.) Appellant knew of the dangers of the employment, when he entered the service, and while he did not know and could not foresee the escape of O’Connor from custody, still his employment, in anticipation of some such exigency, was for the purpose of guarding against just such a contingency as arose. If it be urged that appellant was not the employee of respondents and therefore not, as to respondents, chargeable with assumption of risk or contributory negligence, the answer would seem to inevitably follow that respondents, for the same reason, owed appellant no contractual duty. It may be urged that the action of respondents, sheriff and superintendent, in permitting O’Connor to escape, so increased or augmented the dangers which appellant risked as to render them legally liable for negligence. The answer, *361 however, to such a suggestion is, that, under appellant’s complaint, there would have been no such danger to increase or augment, had appellant not undertaken the hazardous task he assumed. It does not appear that either the sheriff or the hospital superintendent or O’Connor ever knew or heard of appellant prior to the shooting which wounded appellant; and so, clearly, as far as they were concerned, there was no malicious intent, illwill, or conscious lack of due care for appellant’s personal safety any more than for the entire promiscuous body of the public. There is an utter failure to charge respondents, sheriff and superintendent, with facts constituting them joint tort feasors. There is no authority for joining them as defendants in this action and demurrer was properly sustained on that ground. It is also thought that the complaint does not state facts sufficient to constitute a cause of action against either the sheriff or the superintendent and, as a matter of course, their sureties are not liable if their principals are not liable. (Kanters v. Kotick, 102 Wash. 523, 173 P. 329.) Judgment affirmed. Costs to respondents. Holden, J., and Johnson, D.J., concur. Footnotes [1] “that, as the defendant S. J. McMillan then and there well knew *354 or in the exercise of reasonable care ought to have known, said Dan O’Connor at all times herein mentioned was possessed of homicidal intentions toward his wife, Grace Wark O’Connor, and the members of her family and toward any person, including the plaintiff, who should attempt to intervene for the purpose of protecting said Grace Wark O’Connor and the members of her family from a felonious assault by Dan O’Connor, and that such homicidal intentions were the uncontrollable impulses resulting from a mental and physical disease known as paresis which rendered him mentally deranged and dangerously insane; that, as the defendant S. J. McMillan then and there well knew, or in the exercise of reasonable care ought to have known, the said Dan O’Connor intended to shoot Grace Wark O’Connor, the members of her family, and any person, including the plaintiff, who should attempt to protect her and the members of her family from said Dan O’Connor, if and when an opportunity presented itself. VII “That thereafter, to-wit: on the 25th day of September, 1940, in violation of said order of commitment then in force and effect, the said defendant S. J. McMillan carelessly, negligently, and unreasonably relieved said Dan O’Connor of his detention in the Kootenai County jail and caused his deputy Walter Cox to take such prisoner out of Kootenai County and to deliver him to the defendant James O. Cromwell as superintendent of the State Hospital South at Blackfoot, Idaho, on the 26th day of September, 1940. VIII “That the defendant James O. Cromwell then and there, and in his official capacity, received the said Dan O’Connor and placed him within the confines and detention of said State Hospital; that on the said 26th day of September, 1940, and at all times thereafter the only order or writ under which the said Dan O’Connor was confined was the order of commitment heretofore described as being issued by the said Honorable M. G. Whitney as Probate Judge on the 27th day of August, 1940, directing that Dan O’Connor be held and detained upon the charge of assault with a deadly weapon; and that the said defendant James O. Cromwell explicitly undertook to detain such prisoner and make observations as to his mental and physical condition and then to return him to the defendant S. J. McMillan to be held in the Kootenai County jail for trial or other proceedings in accordance with law; and that the said defendant James O. Cromwell *355 was informed of the fact that Dan O’Connor was in the possession of S. J. McMillan as sheriff of Kootenai County on the charge of assault with a deadly weapon and of the assault hereinbefore mentioned upon C. F. Hess; and that said defendant James O. Cromwell then and there well knew, or in the exercise of reasonable care ought to have known, that said Dan O’Connor was possessed of homicidal intentions toward his wife, Grace Wark O’Connor, and the members of her family, and any person, including the plaintiff, who should attempt to protect her and her family from a felonious assault by Dan O’Connor, and also that such homicidal intentions and desires were the uncontrollable impulses resulting from a serious mental and physical disease known as paresis which rendered him mentally deranged and dangerously insane, and that he intended to shoot and would shoot Grace Wark O’Connor, the members of her family, and any person, including the plaintiff, who should attempt to protect her and the members of her family from a felonious assault by said Dan O’Connor, if and when said Dan O’Connor obtained an opportunity; IX “That thereafter, to-wit, on or about the first day of December, 1940, the defendant James O. Cromwell carelessly, negligently and unreasonably and in wanton disregard of the well being of the plaintiff and Grace Wark O’Connor and her family, and in violation of his duties as medical superintendent of the State Hospital South, permitted the said Dan O’Connor to wander freely without guard or supervision, to leave the confines of the State Hospital South, and to take himself beyond restraint; and thereafter the defendants S. J. McMillan and James O. Cromwell, having it within their power to apprehend the said Dan O’Connor, and take him back into custody, carelessly, negligently, and wantonly permitted the said Dan O’Connor to remain at large and made no effort to apprehend him or to restrain him from his homicidal intentions and insane impulses, contrary to the proper and valid order of commitment as aforesaid; that various persons thereafter notified the defendant S. J. McMillan that Dan O’Connor was at large in Kootenai County and that the said defendant S. J. McMillan carelessly and negligently and in breach of duty made no attempt to apprehend him, although it was within his power to have-done so; X “That the plaintiff was at all times mentioned herein an employee of said Grace Wark O’Connor and that his duties were to perform *356 manual labor for the said Grace Wark O’Connor and, as said Dan O’Connor well knew, to furnish her and her family with protection against the said Dan O’Connor; XI “That, as a proximate result of the negligence and violation of the order of commitment hereinbefore referred to, on the 3rd day of May, 1941, the said Dan O’Connor, acting under insane and uncontrollable impulses, possessed himself of a shotgun and proceeded to the residence of Grace Wark O’Connor and her family and of the plaintiff near Cataldo, in Shoshone County, Idaho, and began to shoot at them, and did, with said shotgun, at such time and place shoot the plaintiff causing about thirty large size lead shot to enter his legs between the hips and the ankles and severely wounding him and causing him pain and suffering and damage to the extent of $25,000.00 as hereinafter more specifically set forth.”