Barlow v. Kuchenbacher

PEED, District Judge. It is apparent the action is brought against three defendants as joint tort-feasors. The first cause of action alleges illegal arrest and imprisonment of the plaintiff without warrant by the defendant Kuchenbacher. No tort in this cause of action js alleged -to have been committed by the defendant Pickett. The defendant Pickett is alleged to be a deputy marshal, but that fact would not involve him in a tort committed by another deputy, unless he participated in [521] the tort. Nor does it appear that there is any cause of action against Pickett in the second cause of action. It is the duty of the arresting officer to take the person arrested, without unreasonable delay, before a magistrate, under the statute. No fault or wrong can be attributed to the defendant Pickett because of neglect of his codefendant and deputy to comply with the statute. The third cause of action does not show that Barlow was detained against his will, nor does it show, by the facts stated, any legal responsibility of Pickett to release the plaintiff' from custody. As to the defendant White, it appears the defendant Kuchenbacher was his deputy, and apparently it is sought to charge the marshal for the arrest of the plaintiff without a warrant and without reasonable cause to believe a felony had been committed by him. It does not appear, from the allegations of the first and second causes of action, that the defendant White authorized the arrest, or consented to the arrest, nor that the arrest was made by his deputy under and by virtue of color of his office. On the contrary, it appears from the complaint that the arrest was made by 'Deputy Kuchenbacher, without the scope of the duties of his office. Under the law, and as the authorities appear to be, a sheriff is responsible only for the acts of a deputy within the scope of his office. If a deputy does unlawful acts, without the scope of his official duties, his superior is not responsible therefor. I do not see, in the first and second causes of action, any cause of action alleged against the defendant White. Maddox v. Hudgeons, 31 Tex. Civ. App. 291, 72 S. W. 414; Brown v. Wallis, 100 Tex. 550, 101 S. W. 1076, 12 L. R. A. (N. S.) 1019; Gambill v. Fuqua, 148 Ala. 448, 42 So. 735; Jones v. Van Beaver, 164 Ky. 80, 174 S. W. 795, L. R. A. 1915E, 172. As to the third cause of action against the defendant White, the same does not show any legal responsibility of White to release the plaintiff, or that the marshal held him against his will. Taking the allegations of the complaint as a whole, it does not appear that defendants White or Pickett are joint tortfeasors, and therefore defendants are improperly united in the action. The demurrer will therefore be sustained.