holding where sheriff and jailer did not examine prisoner to see if he needed medical aid, they were not entitled to judicial immunity from negligence actionSummary of this case from Peterson v. Traill County
April 25, 1955.
1. Pleadings — declaration — not demurrable — as joining actions in contract and tort.
Declaration against sheriff and surety on his official bond, and jailor for death of prisoner, who allegedly was denied medical attention, was not demurrable, on ground that it joined causes of action of tort and contract.
2. Evidence — sustained verdict for deceased prisoner's widow — suit against sheriff and surety — death of prisoner.
Evidence sustained verdict for widow of deceased prisoner, in suit against sheriff and surety on his official bond, and jailor for prisoner's death, who allegedly was denied medical attention while in jail.
3. Negligence — evidence — failure of sheriff to furnish prisoner medical treatment.
Where evidence showed that prisoner could have been administered treatment while in jail, but was furnished no such treatment during his period of incarceration, sheriff was not relieved from liability for death of prisoner because sheriff allegedly lacked authority to send prisoner to hospital.
4. Negligence — statutes — failure of sheriff and jailor to furnish prisoner medical treatment.
Where neither sheriff nor jailor ever examined prisoner to form an opinion as to whether prisoner did or did not need medical aid, sheriff was not relieved from liability on ground that sheriff, under statute to the effect that when a person confined in jail shall be in need of medical or surgical aid, sheriff shall examine the condition of such prisoner, and, if he is of the opinion that prisoner needs such aid, he shall call in a physician or surgeon to attend him, was acting in a judicial capacity to see that prisoner received medical attention. Sec. 4262, Code 1942.
5. Appeal — contributory negligence — affirmative defense — pleaded specially.
Contributory negligence is an affirmative defense, which must be specially pleaded, and where sheriff and jailor did not invoke such defense, either by plea or instructions, contention would not be heard on appeal that deceased's own contributory negligence brought about or contributed to his death.
6. Sheriffs — duty toward imprisoned person — rule.
Where sheriff, by virtue of his office, has arrested and imprisoned a human being, sheriff is bound to exercise ordinary and reasonable care, under circumstances of each particular case, for preservation of the life and health of the imprisoned person, and, for breach of such duty, sheriff and his sureties are responsible in damages on his official bond.
Headnotes as approved by Hall, J.
APPEAL from the Circuit Court of Lowndes County; JOHN D. GREENE, JR., Judge.
G.L. Lucas, Sams Jolly, Columbus, for appellants.
I. The evidence wholly fails to disclose that any failure to provide medical care proximately caused or contributed to the death of appellee's decedent; hence, the requested directed verdict should have been granted. Bufkin v. Louisville N.R.R. Co., 161 Miss. 594, 137 So. 517; Burnside v. Gulf Rfg. Co., 166 Miss. 460, 148 So. 219; Campbell v. Willard, 205 Miss. 783, 39 So.2d 483; Columbus G.R.R. Co. v. Coleman, 172 Miss. 515, 160 So. 277; Crosby v. Burge, 190 Miss. 739, 1 So.2d 504; D'Antoni v. Albritton, 156 Miss. 759, 126 So. 836; Goudy v. State, 203 Miss. 366, 35 So.2d 308; Gulf Rfg. Co. v. Williams, 183 Miss. 723, 185 So. 234; Illinois Cent. R.R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333; Illinois Cent. R.R. Co. v. Wright, 135 Miss. 435, 100 So. 1; Jabron v. State, 172 Miss. 135, 159 So. 406; J.C. Penney Co. v. Scarborough, 184 Miss. 310, 186 So. 316; Kramer Service v. Wilkins, 184 Miss. 483, 186 So. 625; Mauney v. Gulf Rfg. Co., 193 Miss. 421, 9 So.2d 780; Meridian Grain Elevator Co. v. Jones, 176 Miss. 764, 169 So. 771; Mississippi City Lines v. Bullock, 194 Miss. 630, 13 So.2d 34; Pietri v. Louisville N.R.R. Co., 152 Miss. 185, 119 So. 164; Stewart v. Kroger Groc., Etc. Co., 198 Miss. 371, 21 So.2d 912; Thompson v. Mississippi Cent. R.R. Co., 175 Miss. 547, 166 So. 353; Tombigbee Electric Power Assn. v. Gandy, 216 Miss. 514, 62 So.2d 567; Whitley v. Holmes, 164 Miss. 423, 144 So. 48; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842.
II. The Lower Court erred in refusing to direct a verdict for appellants because the evidence showed that the only medical care which might have helped the deceased was hospitalization and medical supplies which appellant Sheriff had no authority or duty to procure. American Disinfecting Co. v. Oktibbeha County (Miss.), 110 So. 869; Ex parte Buck, 104 Miss. 661, 61 So. 651; Ex parte Parker, 94 Miss. 899, 48 So. 297; Franklin County v. American Disinfectant Co., 153 Miss. 583, 121 So. 271; Gray v. Coahoma County, 72 Miss. 303, 16 So. 903; Sec. 4139, Code 1892; Secs. 1835, 2568, 2890, 2913, 2996, 3136, 4260, 4262, 4262.5, 4264, Code 1942; 41 Am. Jur., Prisons, Sec. 25; 72 C.J.S., Prisons, Sec. 25.
III. The acts of the appellant Sheriff, on which the cause was based, constituted a quasi-judicial function for which no liability attaches in the absence of malice or corruption which the evidence shows did not exist; hence, it was error to refuse the request for a directed verdict. Bell v. McKinney, 63 Miss. 187; Dixon v. Gully, 170 Miss. 438, 155 So. 184; Gully v. Bew, 170 Miss. 427, 154 So. pp. 284, 721; Gully v. McClellan, 170 Miss. 405, 153 So. 524; Hughes v. Gully, 170 Miss. 425, 153 So. 528; Lee v. Sills, 95 Miss. 623, 49 So. 259; Lincoln County v. Green, 111 Miss. 32, 71 So. 171; McNutty v. Vickery, 126 Miss. 341, 88 So. 718; National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251; Paxton v. Arthur, 60 Miss. 832; Paxton v. Baum, 59 Miss. 531; Rigby v. Stone, 194 Miss. 775, 11 So.2d 823; State for Use National Surety Corp. v. Malvaney, 221 Miss. 190, 72 So.2d 424; Sec. 4262, Code 1942; 43 Am. Jur., Secs. 258, 274; 46 C.J., Sec. 303; 48 C.J.S., Sec. 63; 67 C.J.S., Sec. 127; 80 C.J.S., Sec. 52.
IV. The Lower Court erred in refusing to direct a verdict for appellants and in granting appellee's instruction No. Four for the reason that no credible evidence indicated appellant Sheriff knowingly or willfully failed, neglected, or refused to perform any duty required of him by law. Sec. 4049, Code 1942.
V. The Lower Court erred in refusing to direct a verdict for appellants and in granting appellee's instruction No. Four in that the contributory negligence of deceased and appellee, shown to exist, was a bar to recovery. State v. McNelis, 72 Ind. App. 231, 122 N.E. 690; Weaver v. Grenada Bank, 180 Miss. 876, 179 So. 564.
VI. The Lower Court erred in overruling the demurrer of defendants for the misjoinder of causes of action. Barnett v. National Surety Corp., 195 Miss. 528, 15 So.2d 776; Cantrell v. National Surety Co., 46 Ga. App. 202, 167 S.E. 314; Home Ins. Co. v. Tate Mercantile Co., 117 Miss. 760, 78 So. 709; Lewis v. State Use of Noxubee County, 65 Miss. 468, 4 So. 429; McKee v. Kent, 24 Miss. 131; Nasif v. Booth, 221 Miss. 126, 72 So.2d 440; Newton Oil Mfg. Co. v. Sessums, 102 Miss. 181, 52 So. 9; Owens v. Gulf S.I.R.R. Co., 118 Miss. 437, 79 So. 348; Potomac Ins. Co. v. Wilkinson, 213 Miss. 520, 57 So.2d 158 and 220 Miss. 740, 71 So.2d 765; State Use of Smith v. Smith, 156 Miss. 288, 125 So. 825.
VII. The Lower Court erred in giving appellee her instruction No. Four as it is a complete departure in many essential points from the applicable law. 65 C.J.S., Negligence, Sec. 290.
VIII. The Lower Court erred in giving appellee's instructions Nos. Three and Five as they do not apply to the facts presented nor the law applicable to employees generally, and especially to employees of public officers. Mississippi Power Light Co. v. Smith, 169 Miss. 447, 153 So. 376; Montgomery v. State, 107 Miss. 518, 65 So. 562; Mullican v. Meridian Light Ry. Co., 121 Miss. 806, 83 So. 816; State ex rel. Brown v. Christmas, 126 Miss. 358, 88 So. 881; State ex rel. Brown v. Poplarville Sawmill Co., 119 Miss. 432, 81 So. 124; State ex rel. Guess v. Miller, 126 Miss. 358, 88 So. 881.
IX. The Lower Court erred in refusing appellants' instructions requested which correctly expound the law involved in the case.
XI. It was error to overrule appellants' motion for a new trial since the verdict of the jury was against the overwhelming weight of the evidence and the law applicable thereto.
L.W. Brown, Starkville, for appellee.
I. The evidence sustains the fact that failure to provide medical care proximately caused or contributed to the death; therefore, the requested directed verdict was promptly overruled. Dean v. Brannon, 139 Miss. 312, 104 So. 173; Illinois Cent. R.R. Co. v. Wright, 135 Miss. 435, 100 So. 1; Kramer Service v. Wilkins, 184 Miss. 483, 186 So. 625; Powell v. Board of Suprs. Tunica County, 107 Miss. 410, 65 So. 499; Smith v. Slack, 125 W. Va. 812, 26 S.E.2d 387; Walton v. Colmer, 169 Miss. 182, 147 So. 331, 148 So. 635; 41 Am. Jur., Secs. 21, 24; Vol. I, Thompson on Negligence, Sec. 56.
II. There was no error in refusing to direct a verdict for appellants. The evidence fails to show that the only medical care which would have helped deceased was hospitalization. Ex parte Jenkins, 25 Ind. App. 523, 58 N.E. 560; Kusah v. McCarkle, 100 Wn. 318, 170 P. 1023; South v. Maryland, 18 How. 396, 15 L.Ed. 433; State of Indiana ex rel. Tyler v. Gobin, 94 Fed. 48; Annos., 46 A.L.R. 97, 111, 61 A.L.R. 569, 571.
III. The acts and duties of appellant Sheriff as applied to this case are ministerial. Brown v. Weaver, 76 Miss. 7, 23 So. 388; Clark v. Kelly, 101 W. Va. 650, 133 S.E. 365; Ex parte Jenkins, supra; Hale v. Johnston, 140 Tenn. 182, 203 S.W. 949; Johnson v. Cunningham, 107 Miss. 140, 65 So. 173; Kusah v. McCarkle, supra; McPhee v. Fidelity, Etc. Co., 52 Wn. 154, 100 P. 174; Smith v. Slack, supra; South v. Maryland, supra; State ex rel. Trigg v. West, 171 Miss. 203, 157 So. 81; State of Indiana ex rel. Tyler v. Gobin, supra; State v. Conley, 188 W. Va. 508, 190 S.E. 908; Sec. 4262, Code 1942; 43 Am. Jur., Public Officers, Sec. 258; Annos. 46 A.L.R. 799, 805, 14 A.L.R. 2d 357; 46 C.J., Sec. 303 p. 19; 22 Am. Eng. Ency. Law 1306; 25, Ibid., 676; Vol. I, Blackstone's Commentaries on the Law, p. 343.
IV. Instruction for appellee No. Four contains a proper pronouncement of the law, and no error was committed in giving the instruction. Gilmer v. Gunter (Miss.), 46 So.2d 447; Secs. 4034, 4262, Code 1942.
V. Appellant's contention that the contributory negligence of the deceased was a bar to recovery is not applicable in Mississippi. Mississippi Power Light Co. v. Merrett, 194 Miss. 794, 12 So.2d 527; State v. McNelis, 72 Ind. App. 231, 122 N.E. 690; Weaver v. Grenada Bank, 180 Miss. 876, 179 So. 564; Sec. 1455, Code 1942.
Mrs. Velma Russell brought this suit in the name of the State for her use against Charles Emerson Farmer, United States Fidelity and Guaranty Company, and Russell Scoffield, seeking damages for the death of her husband, Charles F. Russell. Farmer was Sheriff of Lowndes County, the guaranty company was surety on his official bond in the amount of $20,000.00, and Scoffield was alleged to be an employee of the Sheriff in charge of prisoners, the common denomination of his position being that of jailer. It was charged that Russell was committed to the Lowndes County jail on June 11, 1953, to await the action of the grand jury of the county on a felony charge, and thereby became a prisoner under the care and protection of the defendants Farmer and Scoffield and so remained until November 24, 1953, when he was sent to a hospital, where he died December 2, 1953. It was charged that when he became a prisoner Russell was suffering from internal ulcers in or near the stomach, which condition required medical aid and proper and wholesome food in order that his condition would not become worse, and that notwithstanding many requests for such attention the defendants Farmer and Scoffield failed, neglected, refused and declined to provide medical and surgical aid or the proper wholesome food for such condition and as a result thereof Russell's condition became greatly aggravated and worse and complications arose which caused his death. The bond was for $20,000.00, the suit was for $60,000.00, and the verdict was for $5,000. There was a demurrer to the declaration which was overruled, and this action of the lower court is one of the errors assigned.
(Hn 1) It is contended that this was a suit ex contractu as against Farmer and his surety to the extent of $20,000.00, and ex delicto against Farmer to the extent of $40,000.00 over and above the amount of his bond, and ex delicto against Scoffield for the whole $60,000.00 demanded, and that for this reason the lower court erred in overruling the demurrer. We think this question was settled contrary to appellants' contention in the case of State for the use of Russell v. McRae, et al., 169 Miss. 169, 178, 152 So. 826, where, in a similar situation, this Court said:
"The next point advanced in that the declaration joins two causes of action in one count, one in tort and the other in contract. Section 2889, Code of 1930, (now Section 4034, Code of 1942) requires that the bonds of all public officials shall be made payable to the State and shall be put in suit in the name of the State for the use and benefit of the person injured thereby. The real basis of the cause of action in the case at bar is the alleged tort of the defendant officer, for which the defendant indemnity company stands as a mere surety. The bond is conditioned for the faithful discharge of all the duties and trusts imposed upon the principal by reason of his election as a member of the board of supervisors, and the surety's liability is measured by that of the principal for torts or acts done by him either by virtue or under color of his office, and there was no error in proceeding against the principal and the surety in one count to recover for the alleged tort liability."
(Hn 2) The principal contention of appellants is that they were entitled to a directed verdict. The proof for plaintiff shows conclusively that deceased was suffering with the ulcerated condition, and that this eventually brought about his death. The proof further shows that he was confined in jail from June 11 to November 24 when he appeared in court and his condition was apparently so serious that the circuit judge ordered him sent to a hospital, which was done, and he died there on December 2 from complications induced by his ulcerated condition. The prisoner needed medical attention while he was confined in jail and none was furnished to him. It is shown by the record that, until the prisoner reached such a serious state, this attention could have been rendered in jail. The deceased's wife from time to time brought him certain foods which were recommended by the doctor before he was confined in jail. There is a dispute in the evidence as to whether medical attention was requested of the sheriff and jailer. The jury, by its verdict, found that such requests were made but that they were ignored and no doctor was called to see deceased while he was in jail, notwithstanding the fact that the county had a jail physician who was paid for his services out of the county treasury. We think, under the whole record, that the issue was for the determination of a jury, and that the verdict is not against the great weight of the evidence.
(Hn 3) It is argued that the sheriff had no authority to send the prisoner to a hospital, and that for this reason he was entitled to a peremptory charge, but the record shows that treatment could have been administered while the prisoner was in jail. He was furnished no treatment for his serious condition while in jail.
(Hn 4) It is also argued that it was optional with the sheriff as to whether he would call a doctor for the prisoner and that consequently he was acting in a judicial capacity in failing to see that the prisoner received medical attention. This argument is based on the provisions of Section 4262, Code of 1942, to the effect that when a person confined in jail shall be in need of medical or surgical aid, the sheriff shall immediately examine the condition of such prisoner, and, "if he is of the opinion that the prisoner needs such aid, he shall call in a physician or surgeon to attend him * * *." According to the proof in this case neither the sheriff nor the jailer ever examined the prisoner to form an opinion as to whether he did or did not need medical aid. According to plaintiff's proof they were repeatedly advised of his condition and requested to get a doctor for him, but they did not examine him. There is no showing in the record that the failure to call a doctor was because of any opinion, judicial or otherwise, formed by the sheriff or jailer that the prisoner did not need medical care.
(Hn 5) It is also argued that deceased's own contributory negligence brought about or contributed to his death and that for this reason the directed verdict should have been granted. We have repeatedly held that contributory negligence is an affirmative defense which must be specially pleaded. The appellants did not plead it or request any instruction on it and it is apparently an afterthought raised for the first time in this Court. (Hn 6) One of the best reasoned cases we have found on the law of this case is State of Indiana, ex rel. Tyler v. Gobin, et al., 94 Fed. 48, 50, wherein the Court said:
"The sheriff is bound to the exercise of due care and diligence in keeping possession of property levied on by virtue of his office, so as to preserve the lien unimpaired. He leaves the property at his peril in the possession of the debtor. He is bound to take ordinary care of property levied on, to prevent deterioration or destruction, and, if he neglects to do so, is liable for the resulting injury. He must exercise ordinary care in moving goods and in selecting a fit place for their deposit. He must use due care to feed and water livestock seized by him by virtue of a lawful writ. 22 Am. Eng. Enc. Law, 549, and authorities cited. For a failure to use ordinary care in the cases above mentioned, to which many more might be added, he and his sureties are responsible on his official bond. This liability grows out of a breach of duty to exercise care imposed upon him by law in respect of property seized by virtue of his office. If the law imposes a duty of care in respect of animals and goods which he has taken into his possession by virtue of his office, why should not the law impose the duty of care upon him in respect of human beings who are in his custody by virtue of his office? Is a helpless prisoner in the custody of a sheriff less entitled to his care than a bale of goods or a dumb beast? The law is not subject to any such reproach. When a sheriff, by virtue of his office, has arrested and imprisoned a human being, he is bound to exercise ordinary and reasonable care, under the circumstances of each particular case, for the preservation of his life and health. This duty of care is one owing by him to the person in his custody by virtue of his office, and for a breach of such duty he and his sureties are responsible in damages on his official bond. Asher v. Cabell, 1 C.C.A. 693, 50 Fed. 818, and 2 U.S. App. 159; Hixon v. Cupp (Okla.), 49 P. 227."
The authorities are not unanimous in upholding liability in a case like this but they are numerous. See Clark v. Kelly, 101 W. Va. 650, 133 S.E. 365, 48 A.L.R. 799; Annotations 14 A.L.R. 2d 353, et seq. Mississippi seems to have heretofore aligned itself with those jurisdictions which hold liability of the sheriff and his surety in a case of this nature. In State, ex rel. Trigg v. West, et al., 171 Miss. 203, 157 So. 81, there was involved the propriety of the action of the lower court in sustaining a demurrer to a declaration which failed to charge that the prisoner did not have medical attention and wholesome food while confined by the sheriff, and this Court held that the demurrer was properly sustained, and in effect held that if the declaration had contained such allegations it would have stated a good cause of action. In the case at bar the declaration contained the averments which were omitted in the Trigg case and the proof supported them.
Appellants also complain of the granting and refusing of some of the instructions. Without prolonging this opinion by discussing them in detail, we simply say that we have carefully considered them, and in our opinion the lower court committed no error in the respects complained of and that the law was correctly laid down in the instructions granted. The judgment of the lower court is affirmed.
Roberds, P.J., and Lee, Kyle and Holmes, JJ., concur.