Hanie v. . Penland

BeogddN, J. What is the law with reference to the civil liability of a sheriff for the unlawful killing of a third party by a special deputy in attempting to make an arrest? “Deputy sheriffs are of two kinds: (a) A general deputy, or under-sheriff, who, by virtue of his appointment, has authority to execute all the ordinary duties of the office of sheriff (Com. Dig. tit. ‘Viscount,’ 542, B. 1) ; one who executes process without special authority from the sheriff, and may even delegate authority in the name of the sheriff, or its execution, to a special deputy, (b) A special deputy, who is an officer pro hmc vice to execute a particular writ on some certain occasion, but acts under a specific and not a general appointment and authority.” Allen, J., in Lanier v. Greenville, 174 N. C., 316. In R. R. v. Fisher, 109 N. C., p. 1, the law is thus stated: “The right to appoint under-sheriffs or bailiffs and deputies is not always, if generally, regulated by statute. These subordinates are the servants and agents of the sheriff, and his responsibility for them and relations with them are controlled, generally, by the law governing the relation of principal and agent. While public policy may have induced the Courts to hold his responsibility in some instances to be greater, never less, than that of a principal, for the acts of his agent within the scope of the agency, our Code is still silent as to the manner of appointment or the distinct duties of both general and special deputies, while this Court has declared that there is no provision of the common law which requires the deputation of a sheriff to be in writing, and that in any action against a sheriff, for the misconduct of a person alleged to be his deputy, it is not necessary to prove a deputation, but it is sufficient simply to show that the person acted as deputy with the consent or privity of the sheriff.” The principle is referred to in several cases in this State. S. v. Fullenwider, 26 N. C., 364; S. v. Allen, 27 N. C., 36; Patterson v. Britt, 33 N. C., 383; S. v. McIntosh, 24 N. C., 53; Eaton v. Kelly, 72 N. C., 110. The paramount question in determining the civil liability of a sheriff for the misconduct of a special deputy, depends upon whether or not the special deputy was acting within the scope of his authority, or whether or not the act was the official a"et of the special deputy sheriff. In Jones v. Van Bever, 164 Ky., 80 L. R. A. (1915 E.), 172, the test *237 in determining whether the act complained of was such an official act as to impose liability upon the sheriff is thus stated: “It will thus be seen that the test as to whether the officer is acting by virtue of his office is whether he is either armed with a valid writ, or had authority to make the arrest without a writ, under a statute. If he is armed with no writ, or if the writ under which he acts is utterly void, and if there is, at the time, no statute which authorizes the act to be done without a writ, then the officer is not acting by virtue of his office.” The authorities relating to the subject are arrayed and reviewed in the foregoing case. See, also, Adkins v. Camp, 105 Southern, 877; Miles v. Wright, 12 A. L. R., 970; Jordan v. Neer, 125 Pac., 1117; Brown v. Wallis, 12 L. R. A. (N. S.), 1019; Mead v. Young, 19 N. C., 521. Applying the test deduced from the authorities to the ease now under consideration, it appears that Eice was a special deputy of Sheriff Penland. It does not appear what his duties were as such special deputy. It further appears that special deputy Eice, without the knowledge, suggestion or direction of the sheriff, voluntarily went to a justice of the peace and procured a blank warrant or a “John Doe” warrant. The affidavit upon which he procured the warrant was signed by him in his individual capacity. The affidavit did not name any particular person. The warrant issued by the justice of the peace was directed “to any constable or other lawful officer of Buncombe County,” commanding such officer “to arrest John Doe, alias,” etc. It does not appear that any complaint had ever be.en made to the sheriff about the violation of the law complained of, or that he authorized or consented to the issue of the warrant, or that he knew anything at all about it. Upon the evidence contained in the record we are of the opinion that the special deputy was not acting in the line of his duty, or within the scope of his authority as such, nor was he acting by virtue of his office or under color thereof,-but entirely and exclusively as a volunteer, and therefore the defendant sheriff is not liable for the injury complained of. Affirmed.