The opinion of the court was delivered by
MoAtee, J.:
This cause is brought here upon numerous assignments of error, which are argued in the briefs chiefly upon two propositions, to-wit: (1) That the sheriff was not liable on his official bond for the acts charged, and (2) that if liable on the bond, an action would not lie against the sureties until a judgment had first been obtained against the sheriff in an independent action.
The sections of the statute under which the action was brought are found on p. 392, of the Statutes of Oklahoma, 1890. They provide, in § 1749, that:
“ * * The sheriff and bis sureties shall be responsible, on bis official bond, for the acts and omissions of his under-sheriff, and also for the acts and omissions of the persons deputed to do particular acts.”
And in § 1751, that:
“The sheriff shall have the charge and custody of the jail of his county and all the prisoners in the same, and shall keep such jail himself, or by his deputy, or jailer, for whose acts, he and his sureties shall be liable.”
The plaintiff was in the county jail at the time of the acts complained of under a warrant duly issued from a court authorized to direct the sheriff to arrest and keep the plaintiff in his custody. No question exists as to the validity of the commitment, or that the confinement of the plaintiff was done by the sheriff or his deputy, in the due and lawful exercise of his authority as sheriff. So far, then, the sheriff discharged his duty. He was doing and had done one of the things which the law made it his duty, as sheriff, to “faithfully” perform. Had he discharged his whole duty, when the plaintiff was arrested, and held under process of law duly issued, in his charge, and thus placed in the county jail, and a large number of prisoners being also confined there, charged with the violation of law, and when he had turned the key upon the plaintiff, had he then “faithfully” discharged the whole duty imposed upon him, and did he then “faithfully” keep the jail while permitting such an assault to be made as is charged in the petition? Evidence was adduced to the jury to show that the sheriff knew that it was the custom of the prisoners confined in the jail under his charge to assault and beat prisoners brought to such jail, after pretended or mock trials, and that he failed to use such means as were at his command to prevent such acts, and the jury were instructed by the
court that they could not find the defendant sheriff liable unless he had so known of the custom referred to, and had failed to use such means, or that he had employed an incompetent jailer to take care of the prisoners there confined, including the plaintiff.
It is further provided in § 1753, of the Statutes of Oklahoma, 1890, that:
“It shall be the duty of the sheriff, under sheriffs, and deputies, to keep and preserve the peace of their respective counties, and to quiet and suppress all affrays;
*
* and in apprehending or securing any person for a felony or breach of the peace, they may call to their aid such person or persons of the county as they may deem necessary.”
It was, then, under the statute, the duty of the sheriff to preserve the peace and to quiet and suppress all affrays, and he had the power in such suppression to call to his aid any person or persons of his county as he might deem necessary. The county jail was peculiarly and especially under his province, and the persons confined therein were wholly dependent upon him and his subordinates for protection from violence. The assault made upon the defendant in error was one of an outrageous and unprovoked character; it was without mitigation or excuse; it was made, as the jury found, when the jailer, Bryant, “was present at the time of the assault,” and if the sheriff could, in such a case, be exempt from liability, it would be upon an interpretation of the law which, while making it his duty to preserve the peace throughout the county, would imply an exception in favor of the county jail which is under his immediate surveillance and protection, and in which the prisoners was shut up, helpless, in the companionship of other prisoners who were known to be in the habit of making assaults of a similar character.
It was the duty of the sheriff and his deputies to keep the peace. In the presence of a statute which makes it the duty of the sheriff to keep the peace and suppress affrays througout the county of Logan, was the sheriff exempt from that duty because the plaintiff was incarcerated in the county jail, immediately under his personal care, and without any means of self protection? The situation of the plaintiff was one of entire dependence upon the sheriff and his deputies. The duty of protection was one of peculiar force, imposing a stronger obligation than that which the statute makes it the duty of the sheriff to discharge through the limits of the county generally.
When the court instructed the jury that if the sheriff and jailer used ordinary care and vigilance, then the defendants were not liable, it was surely expressing the law in terms of moderation and interpreting the law most favorably to the sheriff. It was the duty of the sheriff to use, at least, that degree of care in the protection of the plaintiff. The situation of the plaintiff required at least “ordinary care and vigilance,” and if the sheriff and his deputies and jailer omitted these, then they omitted to “faithfully” discharge the duty toward the plaintiff, to that extent imposed by the statute and he is then expressly declared to be “responsible on his official bond.”
In the case of
Asher v. Cabell,
50 Fed. Rep. 818, which was an action against a United States marshal and his bondsmen for permitting a prisoner to be killed by a mob, the court said, that:
“The defendant, as United States marshal, certainly owed a duty in the premises to Mario-, that of safe keeping and protection from unlawful injury. The defendant’s oath of office, his bond, and the necessary implications of the law, all point to such duty as imposed
upon him, ‘whenever a common law, a statute, a municipal by-law, or any other law, imposes on one a duty, if of a sort affecting the public, within the principles of the criminal law, a breach of it is indictable, and a civil action will lie in favor of any person who has suffered specially therefrom.’(Bishop’s Non-Contract Law, §132).
“ ‘Commonly, where the law has cast a duty upon one to another, simply neglect to discharge it, whereby 'the other has suffered injury, is actionable.’
(Id.
§ 526). ‘When the injury proceeds from two causes operating together, the party putting in motion one of them is liable the same as though it was the sole cause. This is one form of a universal principle of law, that he who contributes to a wrong, either civil or criminal, is answerable as a doer.’
{Id.
§ 39).
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The opinion of the court was delivered by
MoAtee, J.:
This cause is brought here upon numerous assignments of error, which are argued in the briefs chiefly upon two propositions, to-wit: (1) That the sheriff was not liable on his official bond for the acts charged, and (2) that if liable on the bond, an action would not lie against the sureties until a judgment had first been obtained against the sheriff in an independent action.
The sections of the statute under which the action was brought are found on p. 392, of the Statutes of Oklahoma, 1890. They provide, in § 1749, that:
“ * * The sheriff and bis sureties shall be responsible, on bis official bond, for the acts and omissions of his under-sheriff, and also for the acts and omissions of the persons deputed to do particular acts.”
And in § 1751, that:
“The sheriff shall have the charge and custody of the jail of his county and all the prisoners in the same, and shall keep such jail himself, or by his deputy, or jailer, for whose acts, he and his sureties shall be liable.”
The plaintiff was in the county jail at the time of the acts complained of under a warrant duly issued from a court authorized to direct the sheriff to arrest and keep the plaintiff in his custody. No question exists as to the validity of the commitment, or that the confinement of the plaintiff was done by the sheriff or his deputy, in the due and lawful exercise of his authority as sheriff. So far, then, the sheriff discharged his duty. He was doing and had done one of the things which the law made it his duty, as sheriff, to “faithfully” perform. Had he discharged his whole duty, when the plaintiff was arrested, and held under process of law duly issued, in his charge, and thus placed in the county jail, and a large number of prisoners being also confined there, charged with the violation of law, and when he had turned the key upon the plaintiff, had he then “faithfully” discharged the whole duty imposed upon him, and did he then “faithfully” keep the jail while permitting such an assault to be made as is charged in the petition? Evidence was adduced to the jury to show that the sheriff knew that it was the custom of the prisoners confined in the jail under his charge to assault and beat prisoners brought to such jail, after pretended or mock trials, and that he failed to use such means as were at his command to prevent such acts, and the jury were instructed by the
court that they could not find the defendant sheriff liable unless he had so known of the custom referred to, and had failed to use such means, or that he had employed an incompetent jailer to take care of the prisoners there confined, including the plaintiff.
It is further provided in § 1753, of the Statutes of Oklahoma, 1890, that:
“It shall be the duty of the sheriff, under sheriffs, and deputies, to keep and preserve the peace of their respective counties, and to quiet and suppress all affrays;
*
* and in apprehending or securing any person for a felony or breach of the peace, they may call to their aid such person or persons of the county as they may deem necessary.”
It was, then, under the statute, the duty of the sheriff to preserve the peace and to quiet and suppress all affrays, and he had the power in such suppression to call to his aid any person or persons of his county as he might deem necessary. The county jail was peculiarly and especially under his province, and the persons confined therein were wholly dependent upon him and his subordinates for protection from violence. The assault made upon the defendant in error was one of an outrageous and unprovoked character; it was without mitigation or excuse; it was made, as the jury found, when the jailer, Bryant, “was present at the time of the assault,” and if the sheriff could, in such a case, be exempt from liability, it would be upon an interpretation of the law which, while making it his duty to preserve the peace throughout the county, would imply an exception in favor of the county jail which is under his immediate surveillance and protection, and in which the prisoners was shut up, helpless, in the companionship of other prisoners who were known to be in the habit of making assaults of a similar character.
It was the duty of the sheriff and his deputies to keep the peace. In the presence of a statute which makes it the duty of the sheriff to keep the peace and suppress affrays througout the county of Logan, was the sheriff exempt from that duty because the plaintiff was incarcerated in the county jail, immediately under his personal care, and without any means of self protection? The situation of the plaintiff was one of entire dependence upon the sheriff and his deputies. The duty of protection was one of peculiar force, imposing a stronger obligation than that which the statute makes it the duty of the sheriff to discharge through the limits of the county generally.
When the court instructed the jury that if the sheriff and jailer used ordinary care and vigilance, then the defendants were not liable, it was surely expressing the law in terms of moderation and interpreting the law most favorably to the sheriff. It was the duty of the sheriff to use, at least, that degree of care in the protection of the plaintiff. The situation of the plaintiff required at least “ordinary care and vigilance,” and if the sheriff and his deputies and jailer omitted these, then they omitted to “faithfully” discharge the duty toward the plaintiff, to that extent imposed by the statute and he is then expressly declared to be “responsible on his official bond.”
In the case of
Asher v. Cabell,
50 Fed. Rep. 818, which was an action against a United States marshal and his bondsmen for permitting a prisoner to be killed by a mob, the court said, that:
“The defendant, as United States marshal, certainly owed a duty in the premises to Mario-, that of safe keeping and protection from unlawful injury. The defendant’s oath of office, his bond, and the necessary implications of the law, all point to such duty as imposed
upon him, ‘whenever a common law, a statute, a municipal by-law, or any other law, imposes on one a duty, if of a sort affecting the public, within the principles of the criminal law, a breach of it is indictable, and a civil action will lie in favor of any person who has suffered specially therefrom.’(Bishop’s Non-Contract Law, §132).
“ ‘Commonly, where the law has cast a duty upon one to another, simply neglect to discharge it, whereby 'the other has suffered injury, is actionable.’
(Id.
§ 526). ‘When the injury proceeds from two causes operating together, the party putting in motion one of them is liable the same as though it was the sole cause. This is one form of a universal principle of law, that he who contributes to a wrong, either civil or criminal, is answerable as a doer.’
{Id.
§ 39). That a United States marshal may take prisoners into his custody, and permit them to be disarmed and shackled, and then negligently and knowingly deliver them over to incompetent deputies, and the known hostility of mobs, without liability for his neglect of duty, is a proposition which we think cannot be sanctioned.”
While it is sought to sever the liability of the sureties from that of the sheriff there can be no contention and no reasonable ground for separating the liability of one from that of the other, because the bond is given for the “faithful performance and execution of the office of sheriff,” and if, acting in the discharge of his duty, the sheriff fails to “faithfully perform” that duty, then the sureties are equally liable with himself, and if, while acting
virtute officii,
a sheriff, or his deputy, omits to do the thing which, in the faithful discharge of his duty he ought to have done, it is a misfeasance, and a case of trespass and the sheriff is liable on his bond.
(People v. Schuyler,
4 N. Y. Rep. 179; Machem on Public Officers ,§§ 664, 667, 672, 674, 682, 798).
And it was said in
South v. State of Maryland,
18
How. 396, that: “To entitle a citizen to sue on the bond for his own use, he must show such a default as would entitle him to recover against the sheriff in an action on the case.” Thus holding that if the plaintiff had a right of recovery in a case like the present, that he could sue immediately on the bond. “In his ministerial capacity” the sheriff “is bound to execute all processes issuing from the courts of justice. He is keeper of the county jail, and answerable for the safe keeping of prisoners.” And that: “Where he acts ministerially he is liable for acts of misfeasance and nonfeasance to tbe party who is injured by them.”
Upon the second proposition that, if liable thereon an action would not lie against the sureties until a judgment had first been obtained against the sheriff in an independent action, we do not think that this contention could be sustained.
The statute heretofore cited appears sufficiently plain. There appears to be no reason why, in the face of the bond which is jointly conditioned by the sheriff and his sureties for the faithful performance and execution of his office as sheriff, when the plaintiff comes into court alleging that the sheriff has not faithfully performed and executed his duty as sheriff, there need be no separation and prior action as against the sheriff.
Indeed, it is to the interest of the sureties that they should have the privilege and advantage of defending in a joint action with the sheriff, instead of being put upon their defense in an action upon a judgment against the sheriff, in which they have not had the opportunity of defending.
No requirement of the kind is made in the statute, nor does there appear to have been any practice of the kind
at the common law, nor any foundation in reason for sucli a separation and prior action against the sheriff, himself.
It was declared in
Governor v. White,
24 Amer. Dec. 763, by the supreme court of Alabama, that:
“Sureties upon an official bond are proper parties to a suit brought upon a breach of the condition of the bond, though neither the fact nor amount of their principal and liability had been established by previous suit.”
No authorities are cited against this view. Authorities in support of it are
State v. Leeds,
31 N. J. Law, 185;
Hoye v. Raymond,
25 Kan. 665. And it is declared in Murfree’s Official Bonds, §§ 490, 491 and 492, that:
“It is not the general rule that a judgment against the sheriff individually is an essential preliminary to an action on his official bond. * * There being no necessity for more than one suit to fix the liability of the defendants, only one should be instituted.”
We do not think, however, that the sureties can be held liable for exemplary damages. The measure of damages in all cases against the sureties of an officer, in the absence of any statutory rule, is just compensation for actual injury.
(Brobst v. Skillen,
16 Ohio St. 382;
Zeigler v. Commonwealth,
12 Pa. St. 227;
Bevans v. Ramsay,
15 How. U. S. 179;
Bennett v. Vingard,
34 Mo. 216;
Lowell v. Parker,
10 Met. 309;
Griffin v. Undervood,
16 Ohio St. 389).
The amount of damages assessed by the jury as exemplary damages was, therefore, without authority and should have been disallowed by the court, and this order will accordingly be made.
In other respects the judgment will be affirmed.
Dale, O. J., having presided in the court below, and
Keaton, J., having been of counsel, not sitting; all the other Justices concurring.