Opinion
No. 31363.
October 22, 1934. Suggestion of Error Overruled December 3, 1934.
1. APPEAL AND ERROR.
In reviewing judgment sustaining demurrer which raised question whether declaration stated cause of action, allegations of declaration must be construed most strongly against pleader.
2. SHERIFFS AND CONSTABLES.
Declaration against sheriff and surety for maltreatment of prisoner resulting in prisoner's death, in that sheriff took deceased into custody knowing he was ill and placed him at work on public roads, held insufficient in not sufficiently charging that prevention of deceased's wife from giving him food and medicine while in jail caused death and in not charging he did not have medical attention and wholesome food (Code 1930, sections 4064, 4074).
3. SHERIFFS AND CONSTABLES.
That sheriff enforces law against prisoner with malice against him affords no ground for recovery of damages against sheriff and surety.
APPEAL from the Circuit Court of Clarke County.
Nate S. Williamson and R.M. Bourdeaux, both of Meridian, for appellant.
The conduct of the sheriff toward the prisoner, W.S. Trigg, and his treatment of the prisoner was in violation of section 4074 of the Mississippi Code of 1930.
His conduct was also in violation of sections 4073, 4075 and also 4064 of said Mississippi Code of 1930.
The duties of a sheriff require him to exercise reasonable care to prevent injury of life or limb of a prisoner rightfully in his custody.
28 A.S.R. 440; 24 R.C.L. 945-950; Section 3309, Mississippi Code of 1930; 11 L.R.A. (N.S.) 758; Secs. 3324 and 3334, Code of 1930; 51 L.R.A. 1179; State v. Smith, 125 So. 825; 39 A.L.R. 1306; 91 A.S.R. 542; Fred Kusah, Respt., v. Fred W. McCorkle, Sheriff of Thurston County et al., L.R.A. 1918C, p. 1158; 71 A.S.R. 512-522; 24 R.C.L. 991.
In the case of the sheriff, both by statute and at common law, as we have seen, he owes the direct duty to a prisoner in his custody to keep him in health and free from harm, and for any breach of such duty resulting in injury he is liable to the prisoner, or, if he be dead, to those entitled to recover for his wrongful death.
If the sheriff is found guilty of such negligence, the sureties on his bond would also be liable to the extent of the bond, for the bond is conditioned for the faithful performance of his duties.
L.R.A. 1918C, p. 1158.
J.A. Covington, Jr., of Meridian, for appellees.
It will be observed that the cases cited by appellants in their brief have no application to the case at bar for without exception they relate to personal injuries committed by the officer by shooting or otherwise, where the sheriff did not properly protect the prisoner from mob violence, where one of the sheriff's prisoners committed an assault upon another prisoner or where the sheriff was negligent in the handling of personal property. The decisions in those cases rest upon entirely different principles from the case at bar as will appear hereafter.
The declaration admits and sets out that Trigg never did pay the costs but says that he was unable to do so on account of his physical and financial condition and because he was not able to earn a sufficient amount of money to pay the costs. These facts did not relieve Trigg of his legal liability for the costs nor of the consequences of his failure to pay them. The costs were just as much a part of the sentence as the fine was.
Buck v. State, 103 Miss. 276, 60 So. 321; Section 4058, Code of 1930; Ex parte McInnis, 98 Miss. 773, 54 So. 260.
Section 4059 of the 1930 Code provides that it is the imperative duty of the board of supervisors in each county to require each convict sentenced to imprisonment in the county jail and the payment of a fine and costs to work out the sentence on the county convict farm or on the public roads or other public work of the county.
Section 1258, Code of 1930.
Under the law the defendant sheriff had no more right to refuse to deliver him to the county road than he had to refuse to imprison him to begin with. He was merely following out the plain provisions of the statutes.
This declaration does not charge that the sheriff failed to provide the prisoner with medicine, food and other things necessary.
The declaration does not say that Mrs. Trigg and the two learned and competent physicians brought the matter to the attention of the county health officer or of a physician designated by the board or of the board of supervisors itself.
Section 4064, Code of 1930.
The law required him to deliver Trigg to the county convict camp and upon his doing so he was no longer the custodian of the prisoner.
57 C.J. 899; State v. Basham, 77 Miss. 688, 27 So. 996.
The law is designed for the government of all and is supreme. Not even a judge may depart from it to satisfy the dictates of his own personal opinions and impulses.
State v. Kirby, 51 So. 811; Section 4059, Code of 1930; Morris v. Waldrop, 118 So. 621.
It is apparent that a mere sheriff who is charged with the execution of the law and has no power to make or to construe the law, must perform his duties strictly as an administrator.
Appellant, the state for the use of Mrs. Fannie Trigg and her children, brought this action in the circuit court of Clarke county against appellee W.Z. West, the sheriff of that county, and the surety on his official bond, to recover damages for the alleged maltreatment of W.S. Trigg, the husband and father of the usees, while in the custody of the sheriff; such alleged maltreatment resulting in the death of Trigg. Appellees demurred to the declaration, which demurrer was sustained. Appellant filed an amended declaration, which was demurred to by appellees, and which demurrer was likewise sustained. Appellant declining to plead further, final judgment was entered dismissing the cause. From that judgment appellant prosecutes this appeal.
The following are the substantial averments of the declaration: That on the 11th of September, 1929, W.S. Trigg was convicted in the circuit court of Clarke county of violating the liquor laws of the state; that the fine was suspended during good behavior, and stay of execution granted as to the payment of the costs until the following term of the court; that Trigg failed to pay the costs which were a part of the sentence, and on September 22, 1931, West, the sheriff, caused the clerk to issue a writ of capias pro finem, in pursuance of which Trigg was taken into custody on the same day by the sheriff and placed in the county jail; that the sheriff knew that the only reason Trigg had failed to pay the costs was that he was unable to earn the necessary money on account of being afflicted with tuberculosis; that the sheriff also knew that on account of his illness it would endanger his life to confine him in jail; that he remained in jail six days; that the sheriff was also warned by Trigg's wife and two physicians that imprisonment would endanger his life, and that he could not perform manual labor due to his physical condition; that the wife requested that he should not be turned over to the convict superintendent to work on the public roads, and promised if he was not so turned over she would make every effort to pay the costs; that the sheriff willfully and maliciously ignored her entreaties, and in addition prevented her from taking him medicine, food, and other necessary comforts while he was in jail; that removing Trigg from the county jail to work on the public roads of the county amounted to intentional, willful, and malicious maltreatment by the sheriff, and that such treatment with a proximate cause of Trigg's death, which took place during the same week he was so placed at work; that the sheriff knew the result would be as it was.
Does the declaration state a cause of action? In considering the question, the allegations of the declaration must be construed most strongly against the pleader. Appellant, if not expressly, impliedly concedes that the judgment of the court imposing the fine and costs on Trigg and the suspension of the payment of the fine during good behavior, his commitment until the payment of the costs, which was a part of the sentence, and the issuance of the capias pro finem, and the turning of Trigg over to the superintendent of the county convicts for work on the public roads, all would have been authorized by law, except for Trigg's physical condition, which exempted him from its operation.
Section 4064, Code of 1930, provides that a convict shall be relieved of doing manual labor if the county health officer shall give a certificate that he is physically unable to do any kind of manual labor. Section 4074, Code of 1930, provides for proper food, clothing, shelter, bathing facilities, and medical attention for convicts.
The declaration does not sufficiently charge that the prevention of Trigg's wife from giving him food and medicine while in jail caused his death. It is not charged that he did not have medical attention and wholesome food while so confined. The allegations of the declaration, in their last analysis, simply seek a recovery on the ground that, although the sheriff performed the duties required of him by law, he did so maliciously; that in enforcing the law against the prisoner he did so with malice against him. There can be no recovery upon that ground.
Appellant relies on the authorities dealing with the duties of sheriffs with reference to the lives and limbs of prisoners in their custody. Cases are cited holding that it is their duty to protect their prisoners from mob violence, etc. Those authorities have no application here, that we can see.
Affirmed.