Goodman v. Condo

Opinion by Beeber, J., The constable and an assistant went to the house occupied by one, William R. Etlinger, his wife and two young children, for the purpose of arresting him upon a bench warrant. After having informed him of their purpose to arrest him on a warrant they were refused admission, whereupon they broke down the outer door, entered the house, and found the entrance to the foot of the stairway leading to the second story, where Etlinger was, barred by a locked door. The constable broke out a panel of this door and attempted to pass through. Whilst doing so he was shot by Etlinger, who was standing at the top of the stairway. The assistant immediately left the premises and notified the community of what had occurred, adding that lie believed the constable had been killed. Several citizens then proceeded towards the house for the purpose of arresting Etlinger, who fired upon them as they approached. They then withdrew to a safe, distance, stationed men to guard the house so that he could not escape, and sent notice to the sheriff of what was occurring. The latter started at once for the scene of action taking with him several deputies. He arrived late in the evening and found that frequent shots had been exchanged between Etlinger in the house and the excited citizens outside during the afternoon. This shopting continued after his arri [465] val. He placed guards around the house, who watched during the night to prevent an escape. Next morning with a squad of men he marched towards the house with a view of making the arrest, when Etlinger fired upon them. They then withdrew. During the day he learned that Etlinger had threatened to kill any one who came to the house, that he had a considerable amount of dynamite in it and that he had said he would not be arrested. The sheriff succeeded in háving an interview with Etlinger in which he asked him to give himself up and he promised to protect him from the excited citizens, but Etlinger refused to do so. After consultation with those around him the sheriff concluded that the only way to accomplish the arrest would be to burn the house and thus drive Etlinger out. This was done. The house belonged to the plaintiff, who brought suit against the sheriff to recover its value. A verdict was found in her favor. The question is whether an action will lie against the sheriff under these circumstances. The sheriff contends that he is not liable because the destruction of the house was necessary to enable him to perform his public duty, to wit: to arrest the felon. Ground for this contention is sought in the principle that authorizes one, whether officer or not, to raze buildings to the ground to prevent the spreading of a conflagration, to appropriate exclusively a plank in a shipwreck at the expense of another’s life, to throw overboard goods in a tempest for the safety of a vessel, or to trespass upon another’s land to escape death from an enemy. This principle is well recognized in the cases, but its application is only- allowed where the situation is such that absolute, imperative necessity requires the commission of the acts which cause the injury. Unless the dangers, against which the acts complained of are committed to protect one, are irresistible, overwhelming and avoidable in no other way, they do not justify the destruction of life or property because the essential element of necessity is lacking to the situation. If there be such a necessity the right to destroy exists and belongs to one as an individual in his natural state and not because he is a member of a civilized society. It is both above and beyond his rights derived from the social compact and it has no necessary connection with or dependence upon the sovereign power. It is based upon and derived from the natural right of self466 preservation and is superior to his rights or duties as a member of society. If one who exercises this right happens at the time to be an officer he hás no greater immunity from liability than a private individual would have doing the same thing under the same circumstances. Of course if he does the act as an officer in obedience to the mandate of the law requiring that particular thing to be done, then he is not exercising this natural right, except as it has been transformed into a statutory right, but is performing an official duty in the manner prescribed by the law, and is protected, because a public officer, acting in good faith, under the sanction of a constitutional or valid law, is not to be held liable for the necessary result of such an act: American Print Works v. Lawrence, 21 N. J. L. 248; s. c. 23 N. J. L. 590; Respublica v. Sparhawk, 1 Dall. 357. The sheriff in this case does not -rely upon any law which required this particular act, causing the damage, to be done, and prescribed the manner in which it should be done. He stands, therefore, just as any other resident of the village in which these occurrences happened would stand so far as any right to destroy property is concerned. It is true it was his official duty to arrest the felonj but so was it the duty, though not official, of the residents to do the same thing. To enable him to perform his duty he has been clothed with ample power, for the whole posse comitatus is at his command. He may break open doors in order to follow felons, and if they are killed, provided they cannot be otherwise taken, it is justifiable, though if they kill him whilst he is endeavoring to arrest them it is murder: Brook v. Com., 61 Pa. 352. The law, since it has thus invested him with such ample power, has not gone further and authorized him to destroy property when such destruction simply removes somewhat of the danger involved in the performance of his duty. The arrest of a felon is always attended with some danger, but this is an incident of the office of sheriff. Its extent is reduced to a minimum by the great power given to him, but it is obvious that it cannot be removed entirely. This burned house did not threaten the life of the sheriff. It was the desperate man within it. It is true the house furnished some measure of protection to the man within whilst accomplishing his lawless purpose, but its destruction can in no sense be said to have removed a danger which threat [467] enecL the sheriff’s life. So long as the lawless purpose existed so long was there danger to the sheriff. It is evident, therefore, that the only purpose of destroying the house was to render the arrest less dangerous. In this respect it was simply an aid to and in ease of the sheriff and upon principle must be paid for by him. Where he incurs expense or inflicts damage for the purpose of aiding him in the performance of his duties he is liable personally unless the law has provided otherwise: Raush v. Ward, 44 Pa. 389. Judgment affirmed. Pee Curiam, January 17, 1900 : The above opinion was written by Judge Beebee during his term of office as a member of this Court, the case having been duly assigned to him for that purpose. It is now adopted and filed as the opinion of the court.