Opinion
No. 33182.
June 20, 1938.
1. OFFICERS.
A governmental board or council in discharge of its duties acts in an official and not in an individual capacity, and any neglect or failure in exercise of its powers or in discharge of its duties is the default of board and not of individual members, who are not liable unless expressly made so by statute.
2. MUNICIPAL CORPORATION.
In action for an assault and battery allegedly committed by two policemen appointed by mayor and city commissioners, declaration alleging that mayor and commissioners knew or should have known by exercise of reasonable care that policemen were unsuitable to serve as policemen, and that commissioners were grossly negligent in performance of their official duties in making appointment, was insufficient to state cause of action against mayor and commissioners, where appointment of policemen was vested by statute in mayor and commissioners acting as a governmental body and not in any of them as individuals.
3. PLEADING.
On demurrer, the challenged pleading is taken strongest against pleader.
4. PLEADING.
Where an averment is in the alternative or disjunctive, and one of alternatives if standing alone would show cause of action while other woud not, the court on demurrer must consider pleading according to alternative which is against pleader and in favor of demurrant.
5. MUNICIPAL CORPORATIONS.
In action for assault and battery against mayor, city commissioners, chief of police and two policemen for assault and battery allegedly committed by policemen, declaration alleging that commissioners and chief of police were grossly negligent in appointing policemen was insufficient to state cause of action against chief of police, where power of appointment rested solely with mayor and commissioners, in absence of any allegation that recommendation of chief of police was an efficient factor in the improper appointment.
6. ASSAULT AND BATTERY.
In action for assault and battery against two policemen and others, declaration alleging that they made a violent assault and battery upon plaintiff with police clubs, and seriously injured him without cause so that his eardrum was ruptured and his hearing permanently impaired, stated a cause of action against policemen.
APPEAL from the circuit court of Leflore county; HON. S.F. DAVIS, Judge.
Gardner, Denman Everett, for Greenwood, for appellants.
The doctrine of respondeat superior applicable to the relation of master and servant does not apply to a public officer so as to render him responsible for the acts or omissions of subordinates whether appointed by him or not, unless he, having the power of selection, has failed to use ordinary care therein, or unless he has been negligent in supervising the act of such subordinates, or has directed or authorized the wrong.
46 C.J. 1045, sec. 330.
It is stated in Central Railroad Banking Co. v. Lampley, 52 Am. Rep. 334, that, "It is conceded that a public officer is liable for his own misconduct or negligence, and for the misconduct or negligence of his subordinates, where he is invested with their selection or appointment, and from carelessness or unfaithfulness appoints incompetent or untrustworthy persons."
Wiggins v. Hathaway, Varb. 632; State of Alabama v. Kolb, 1 A.L.R. 218; City of Richmond v. Long's Admr., 94 Am. Dec. 461.
The Supreme Court of Mississippi has approved the principle of law stated in the foregoing authorities in the very recent case of Rhodes v. Millsaps College, 176 So. 253.
The general rule exempting charitable institutions from liability has been based upon public policy. The general rule exempting public officers from liability for negligence of persons appointed by them has been based on public policy. The same rules of public policy are applicable in the case of charitable institutions and munici-officers. If there is any distinction or difference in the rule, it should be that charitable institutions should be entitled to a greater protection by law or public policy than municipal officers. If a charitable organization is not liable "where it has exercised care and caution in the selection of its servants for an injury," then conversely if it has not exercised care and caution in the selection of its servants, it is liable to a person injured and damaged by a tort committed by its agent so selected. The court clearly and without reservation states that "in these cases it is recognized there is liability where there is negligence in selecting its agent."
We respectfully urge that this case is authority for the position which the appellant takes with reference to the Mayor, Commissioners and Chief of Police in this case. Certainly there must be some remedy afforded by courts of justice to persons who have suffered great injuries because of the negligence of officers who are vested with the duty of appointing suitable policemen who must deal with the public.
Baptist Hospital v. Moore, 156 Miss. 687; James v. Y. M.V.R.R. Co., 153 Miss. 783; Gardiner Co. v. Permenter, 111 Miss. 818.
The declaration in this case has stated a cause of action against the Mayor and Commissioners clearly and concisely in accordance with sound principles of law approved by the leading legal authorities of this country including the Supreme Court of Mississippi.
One of the well established principles of our law is that an officer must not use more than necessary force in making an arrest. Our courts have faithfully sought to protect citizens from unnecessary abuse of authority by officers of the law.
Brown v. Weaver, 76 Miss. 13; 51 L.R.A. 215; 2 R.C.L. 470; 19 R.C.L. 926; 27 L.R.A. 604; State v. Pugh, 9 Am. St. Rep. 44; Hinton v. Sims, 158 So. 142; D'Aquilla v. Anderson, 153 Miss. 558.
It was argued at some length by counsel for the Chief of Police that no cause of action was stated in the declaration against him. With equal vehemence and assurance appellant insists that he has charged sufficient facts to constitute liability on the part of said Chief of Police.
The Chief of Police occupies the dignity and position of a public officer. Therefore, the same principle of law which governs in the case of the Mayor and Commissioners governs the liability of the Chief of Police.
If the Mayor, Commissioners and Chief of Police are guilty of any negligence in the duties which they performed under the color of their office as well as for those done by virtue of their office, they are liable personally and on their official bonds when such bonds are conditioned for faithful performance of all of the duties of their respective offices.
An officer may be held personally liable on his official bond for negligence in the performance of duty.
18 A.L.R. 198; 39 A.L.R. 1306; Dean v. Bannon, 139 Miss. 312, 104 So. 173; State v. McDaniel, 78 Miss. 4; Lizana v. State, 109 Miss. 464; 22 R.C.L. 506, sec. 190.
The declaration charges a breach of the official bonds of the Mayor and Commissioners and Chief of Police by virtue of their negligence in the selection and appointment of incompetent policemen. They are not only charged with a breach of the bond, but they are charged with an act of negligence which is a tort that brings about the breach of the bond and which jointly with the tortuous acts of negligence of the two policemen caused the injuries to the appellant.
State, for use of Russell v. McRae, 152 So. 826.
Appellees are contending that, because the relationship of master and servant or principal and agent does not and cannot exist between the Mayor, Commissioners, Chief of Police and the appellees, McMahon and Shurden, there is an improper joinder of parties in one and the same count. Appellant is not contending that the relationship of master and servant or principal and agent exists. The cause of action is based on two separate but related acts of negligence which contributed to and were culminated in the injury and damage to the appellant when he was assaulted by these incompetent, unsuitable police officers who were negligently selected and appointed. There is negligence on the part of all of the parties, and the right to recover is not based upon the relationship of master and servant or principal and agent.
I.C.R.R. Co. v. Harris, and Harris v. G. S.I.R.R. Co., 85 Miss. 15.
Concurrence of acts of negligence is not the test of joint liability, but the true test is whether the acts of negligence contributed to the injury.
49 C.J. 157; 20 R.C.L. 176, sec. 145; 47 C.J. 70, sec. 143.
The declaration alleges the general fact that said officers were unsuitable and improper persons to serve as policemen. It alleges the specific facts which make them incompetent which are as follows: they were high tempered; they were given to explosive outbursts of temper; they lacked self control; they lacked restraint which is essential to the qualifications of a good police officer. These are specific facts which any suitable police officer should reasonably possess.
The declaration further alleges that each of said policemen was unreasonable, that they were unnecessarily arbitrary, that they were dictatorial. These are specific allegations concerning their disposition and temperament.
These are allegations of ultimate facts. It is not necessary for appellant to state the evidentiary facts by which he expects to make proof of the ultimate facts. The court will not require him to disclose his evidence in this way, and this ground of demurrer is manifestly for no other purpose than to attempt to have the appellant make unnecessary disclosures of evidentiary facts, which he is entitled to introduce and prove upon the trial.
49 C.J., page 43, sec. 17, and page 88.
The cause of action against the Mayor, Commissioners and Chief of Police did not accrue until the injury occurred to the appellant. The injury is the final element which makes the cause of action.
Stokes v. Newell, 174 Miss. 641; Sec. 24, State Constitution; Sellier v. Board of Election Comrs., 174 Miss. 360.
If the action accrued when the injury occurred, both actions accrued simultaneously through the assault born of the two acts of negligence, (1) the negligent selection and appointment by the Mayor, Commissioners and Chief of Police, and (2) the negligent assault of the two policemen. It was conceived by the first act and delivered by the second. The acts of negligence were related and inseparably linked together. This being the case, appellant has the right to make his own cause of action and join all persons whose negligence contributed to his injury.
I.C.R.R. Co. v. Harris, 85 Miss. 15; 49 C.J. 157; 20 R.C.L. 176; 47 C.J. 70.
The liability of the chief is based on his own negligence in failing to use due care in the selection and recommendation of proper, competent, suitable police officers to the Mayor and Commissioners who exercise the power of appointment.
The fact that the bonds are payable to the City of Greenwood does not bring them within the provisions of Section 2639. Unless the provisions of the bond are in conflict with public policy or positive law the principal and surety are bound according to the condition of the bond and the full extent thereof.
The extension of the condition of the bonds was voluntarily done and the principal and surety on each bond are bound to the full extent thereof, the same as if such a bond were required, and all persons who are injured by a breach of the extended condition voluntarily given are entitled to have recourse against the bond covering the acts of the principal.
22 R.C.L. 497, sec. 178; 46 C.J. 1063.
Our statute provides three paths by which the appellant may reach these official bonds, and appellant has followed with all three, although compliance with any one of them would be sufficient to put said bonds in suit.
Sections 758, 2889 and 2903, Code of 1930; State for use of Russell v. McRae, 152 So. 826; McClure v. Whitney, 120 Miss. 373; State v. Quinn, 290 P. 786, 35 N.M. 62; 2 Words Phrases (4 Series), page 842; 79 A.L.R. 464.
The fact that the official bonds in this case were made payable to the City of Greenwood will not prevent the appellant from properly bringing suit on said bonds.
Oil C. v. National Surety Co., 143 Miss. 855; State for use of Russell v. McRae, 152 So. 826; U.S.F. G. Co. v. Adams Co., 63 So. 193; Sec. 758, Code of 1930.
It is held that "where in the discharge of official duty a police officer fails to take that precaution or exercise that care which due regard for others requires, resulting in injury, his conduct constitutes misfeasance."
U.S.F. G. Co. v. Samuels, 157 N.E. 325, 116 Ohio St. 586.
A.H. Bell and R.C. McBee, both of Greenwood, for appellees.
The declaration states no cause of action against any defendant.
The actions complained of against the said City Council must have been made properly, or the appointments are not valid, in order to make the said McMahon and Shurden police officers of the said City of Greenwood, with authority to make arrest and to do and perform the other duties of the said police.
Section 2527, Code of 1930.
There is no place to look except the municipal minutes of the City of Greenwood for the appointment of the said McMahon and Shurden as policemen by the City Council. This is jurisdictional. It must be plead.
43 C.J., page 497, sec. 754, and pages 513, 514, sec. 789; Town of Ackerman v. Choctaw County, 157 Miss. 954, 128 So. 757; Section 2514, Code of 1930.
An appointment is not complete to any office until the last act required to make the appointment has been accomplished.
Witherspoon v. State, 103 So. 134, 138 Miss. 310; Sec. 2406, 2436 and 2637, Code of 1930; 46 C.J. 953, sec. 66.
The mere statement that the Mayor and two Commissioners appointed the appellees McMahon and Shurden is a conclusion of law when unsupported by the proper allegations of the method of appointment.
Doe v. Blackman, 1 D. Chipm. (Vt.) 109; 23 C.J. 138, sec. 1961; Peterson v. United R. Co., 270 Mo. 67, 192 S.W. 938; National Brewing Co. v. Guminski, 185 Ill. A. 549.
There is no statutory authority anywhere to be found in all the various codes of the State of Mississippi that gives the appellee, chief of police, authority to appoint any officer of the municipality. To say that the chief of police, R.L. Miller, consulted with G.L. Ray, Sam H. Montgomery and E.O. Simmons when the appointments were made does not impose any liability on the said R.L. Miller, for there is not shown any duty that the said R.L. Miller had either by statute or by ordinance or by-law of the said municipality. He is not a member of the council; he has no vote in the council; he has no power of appointment. He is not liable.
Neither the Mayor, Ray, nor the Commissioners, Montgomery and Simmons, have any right to appoint a policeman. That can be done only by the city council. The appointment by the city council, although the said Mayor and Commissioners vote "Yea" thereon, is not the individual action of the said individuals, but the act of the council and, hence, they are not to be brought in question or charged with the negligence of the appointee.
State ex rel. Bank of Commerce Trust Co. v. Forbes, 174 So. 67; Pidgeon Thomas Iron Co. v. Leflore County, 99 So. 677, 135 Miss. 155; Reese v. Isola State Bank, 140 Miss. 355, 105 So. 636; Walton v. Colmer, 148 So. 635, 169 Miss. 182; 43 C.J., pages 237-238, sec. 236; Monette v. State, Thompson v. State, 91 Miss. 662, 44 So. 989; Sec. 2634, Code of 1930; Jones v. Loving, 55 Miss. 109.
The case of Rhodes v. Millsaps College, 176 So. 253, deals with servants and employees of a charitable institution. It has no bearing on the functions of a quasi-judicial body, such as boards of supervisors and municipal councils. It is not in point.
The bonds given by the Mayor and Commissioners are not such bonds as may be sued on by private individuals for their personal benefit.
The declaration states or attempts to state actions arising ex contractu and ex delicto in one and the same count.
Owens v. G. S.I.R. Co., 79 So. 348, 118 Miss. 437.
There is an improper joinder of parties in one count.
Allegations of incompetency of the policemen are mere conclusions.
49 C.J., page 56, sec. 30.
We agree with counsel that the principle of law announced in the case of Stokes v. Newell, 174 Miss. 641, is a correct pronouncement, and that no cause of action accrued against the mayor, commissioners and chief of police until the actual injury resulted; yet that does not give the right to join an action of simple assault, or trespass, with an action of negligence for failure to perform a duty, or an action of trespass on the case. The two are distinct causes of action.
National Baking Lunch Co. v. Wilson, 73 So. 436; Sec. 521, Code of 1930; Town of Hazlehurst v. Cumberland Tel. Tel. Co., 35 So. 951, 83 Miss. 303; I.C.R. Co. v. Abrams, 36 So. 542, 84 Miss. 456; Sutherland v. Buckeye Cotton Oil Co., 259 F. 909.
Argued orally by F.E. Everett Jr., for appellant, and by A.H. Bell, for appellee.
Appellant sued the Mayor and Commissioners and Chief of Police of the City of Greenwood, and two policemen employed at the time by the city, for an alleged unwarranted, unprovoked, and dangerous assault and battery committed by the said two policemen upon appellant. The declaration after the appropriate allegations as to the official stations of the defendants averred as follows:
"It was the official duty of said Mayor and Commissioners to use due care to select and appoint suitable and proper persons as policemen for said City of Greenwood, and it was also the official duty of said Chief of Police to advise with and recommend to said Mayor and Commissioners suitable and proper persons to act as policemen for said City of Greenwood.
"Pursuant to said duty and while acting under color of their officers and while performing by virtue of said offices said G.L. Ray, Mayor, Sam H. Montgomery, and E.O. Simmons, Commissioners, and R.L. Miller, Chief of Police, on the 2nd day of July, 1935, selected and appointed said Tom McMahon a policeman of said City of Greenwood, the Mayor and Commissioners all voting 'Yea' for said appointment, and on the 17th day of March, 1936, selected and appointed said Walter Shurden as policeman to serve in the police department of said City of Greenwood, the Mayor and Commissioners all voting 'Yea' for said appointment.
"At the time of each of said appointments said Mayor and Commissioners and Chief of Police each knew or should have known by the exercise of reasonable care that said Tom McMahon and Walter Shurden were unsuitable and improper persons to serve as policemen," and the declaration continues with more particular averments of the unfitness of said policeman, followed by the general allegation that the Commissioners and Chief of Police were grossly, wantonly, and wilfully negligent, careless, reckless and indifferent in the performance of their official duties in making said appointments.
The declaration thence continues with elaborate averments to the effect that thereafter said two policemen, while acting as such, made a violent and brutal assault and battery upon appellant with police clubs, seriously injuring him, all without any reason or cause whatever, it being averred that, among other injuries, appellant's eardrum was ruptured resulting in a permanent impairment of his hearing. It is not necessary to pursue the declaration further than to say that its averments are ample to state a cause of action against the two policemen, who are among the parties defendant.
Taking up the first main question, whether the declaration states any cause of action against the Mayor and Commissioners: It is at once to be noted in this connection that the appointment of policemen is vested by statute solely in the mayor and commissioners acting as a governmental body, and not in any of them as individuals. This court, by several decisions heretofore rendered, has firmly committed itself to the rule, which generally prevails, that a governmental board or council, in the discharge of the duties imposed by law upon the board or council as such, acts in an official, and not in an individual capacity; and any neglect or failure in the exercise of its powers or in the discharge of its duties is the default of the board and not of the individuals composing it, and they are not liable for such neglect or default unless expressly made so by statute. State v. Forbes, 179 Miss. 1, 174 So. 67; Reese v. Isola State Bank, 140 Miss. 355, 105 So. 636; Pidgeon Thomas Iron Co. v. Leflore County, 135 Miss. 155, 99 So. 677, and the cases cited in those opinions.
In the Forbes Case, supra, the court called attention to the fact that in some jurisdictions an exception has been engrafted upon the rule so as to hold a member of such a board or council individually liable when his wrongful conduct as a member has been one of active commission rather than omission. Our court there expressly declined to commit itself upon the stated exception, and we express no opinion on it here. We are not required to do so, for the reason that the only allegation in the declaration upon which such a proposition could be advanced is that the mayor and commissioners at the time of the appointment knew of the alleged unfitness of the appointees. The question whether this allegation of actual knowledge is sufficient to bring the issue within the above mentioned asserted exception to the general rule is not before us, because the allegation of actual knowledge is immediately followed by the alternative or disjunctive allegation, "or should have known by the exercise of reasonable care," which latter is plainly an allegation of no more than negligence by omission.
Throughout the judicial history of this state, it has been the firm rule that on demurrer, the challenged pleading is taken strongest against the pleader. It follows inescapably from that rule that when an averment in a declaration is in the alternative or disjunctive and one of the alternatives if standing alone would show a cause of action, while the other alternative if standing alone would not state a case, the court on demurrer must consider the pleading according to that alternative which is against the pleader and in favor of the demurrant. Perry v. Standard Oil Co., D.C., 15 F. Supp. 563; 21 R.C.L., p. 451; 49 C.J., p. 97 et seq. The separate demurrer of the Mayor and Commissioners was, therefore, properly sustained.
The second question is whether any case has been stated against the Chief of Police. As already mentioned, the power and authority to appoint policemen rests solely with the Mayor and Commissioners. All that the Chief of Police could do would be to recommend or advise, and in any event if he is to be held liable for such advice and recommendation, it must be expressly averred in terms of fact, and not left to mere inference, that his recommendation or advice was actually an efficient factor in the improper appointments. No such allegation is found in the declaration, and, therefore, the separate demurrer of the Chief of Police was properly sustained, not to mention other grounds upon which the same result, as to him, would follow.
The third question, whether a cause of action was stated against the two policemen, we have already answered in the affirmative. Their separate demurrers should have been overruled. In this respect compare Bates v. McComb (Miss.), 179 So. 737.
The answers to the three stated questions make it unnecessary to discuss the other matters put forward in the briefs.
Affirmed in part; reversed in part and remanded.