In this case the following facts are agreed upon by the parties: That one Fleming was committed in due course of law, as a debtor in execution, at the instance of Boaz Adams in one case and of John P. Mabry in another case, to the custody of James C. Turrentine, the plaintiff, as the Sheriff of Orange County, and he delivered the said Fleming to the defendant Faucett, the jailer of said county; and he remained in close prison until the night of 1 November, 1844, when he made his escape by his own act, assisted by some one from the outside of the prison, by cutting through the iron bars of the window, but without the knowledge or consent or actual negligence of the defendant. The plaintiff was sued for an escape, as sheriff, in an action of debt, by both Adams and Mabry, who effected recoveries against him for their debts against Fleming. And on 30 August, 1849, he paid said Adams the amount of his judgment against him for said escape, viz., $3,630.69, and for costs of said suit $71.43. And on 30 August, (653) 1849, he likewise paid the said Mabry his said judgment, viz., $620, and for costs of said suit $80.82; that on the same day he paid to his own attorneys in the said two suits $310, and in expenses in attempting to arrest the said Fleming, $62.50; that the said Turrentine commenced an action of assumpsit for said escape against the said Faucett, as jailer, on 15 October, 1847, in Orange Superior Court; and at March term of said court, in 1849, the said plaintiff was nonsuited therein, and judgment of the court was rendered against him; and that afterwards the said Turrentine, on 30 August, 1849, commenced the present action for the same cause of action against said Faucett, as jailer; that the said Faucett was jailer and the said Turrentine sheriff on 1 November, 1844, when the said Fleming made his escape. Upon this state of facts the court was of opinion the plaintiff was not entitled to recover, and instructed the jury that, while the action was believed to be in time and not barred *Page 446 by the statute, yet, upon the other plea, the plaintiff could not recover. There was a verdict in accordance with these instructions.
Rule discharged; judgment, and appeal. One Fleming, who was in jail under acapias ad satisfaciendum, escaped. The plaintiff was sued, as sheriff, and forced to pay a large amount to the creditors, and brings this action against the defendant, his jailer, and declares upon an undertaking to keep the said Fleming faithfully and securely, and on failure to indemnify and save the plaintiff harmless from all loss or damage. It is (655) stated in the case agreed that Fleming made his escape without the knowledge or consent or actual negligence of the defendant.
The defendant by his counsel admits that there was an implied undertaking to keep the prisoner faithfully and diligently, but denies that the law implies an undertaking to keep safely or to indemnify.
The judge in the court below so decided. To this the plaintiff excepts. There is no error.
For the plaintiff it is said the sheriff is by law bound to keep prisoners safely. The defendant, when he undertook to act as jailer, must be presumed to have done so with reference to this liability of his principal; hence, there is an implied undertaking on his part so to act as to prevent his principal from being subjected to loss, or, in other words, there is an implied undertaking to keep safely or indemnify.
For the defendant it is said the general rule is that agents, servants and bailees, where the contract is for the benefit of both parties, are only liable for ordinary neglect. In the case of sheriffs, common carriers and innkeepers an exception is made; they are held liable as insurers, except against "the act of God and the king's enemies," upon the ground ofpublic policy. This reason does not extend to their deputies, agents and servants. Therefore, the latter do not fall under the exception, but stand under the general rule.
The argument for the plaintiff clearly shows the expediency of taking a bond of indemnity (as sheriffs usually do). But if he neglects to do so,non constat the law will imply undertaking to keep prisoners safe or indemnify. An undertaking to act faithfully and diligently is implied by law. This the jailer is able to do, if he will. But when it comes toinsuring *Page 447 that prisoners will be kept safely, and indemnifying against acts beyond the control of the jailer, and which do not fall within the reach of ordinary diligence, it is clearly a different question. This higher obligation which the law, from (656) motives of public policy, imposes on the superior, can only be imposed on the inferior by an express undertaking. Public policy is satisfied by holding the superior responsible. As between him and his jailer, the general rule applies, unless there be an express agreement to indemnify.
To illustrate: a railroad company, as a common carrier, is bound to insure every article bailed to be carried, because public policy requires it, and it is presumed the rates are fixed in reference not only to the trouble of carrying, but to this liability.
This policy does not extend to the conductor of a train, and there is no presumption that he has undertaken a higher degree of responsibility than that which is imposed by the general rule, in the absence of an express undertaking to that effect in consideration of higher wages. So, although the company be chargeable, as a common carrier, he is not liable over, without proof of a want of ordinary care.
It is suggested that if this liability is not implied by law, it is unlawful to take a bond of indemnity, and such bond is void, and that the real purpose of taking these bonds is not to add to the liability, but to increase the security.
It is against law to take a bond of indemnity and thereby encourage or permit an unlawful act — as to give a stranger a key and free access to the jail. But an indemnity from the jailer is an inducement to make him more strict and vigilant in the discharge of his duties. Sheriffs have, for this reason, always been allowed, by bond or express undertaking of jailers and deputies, to raise the responsibility of the inferior to the same degree as that imposed on the superior.
The practice of taking bonds has been so uniform that we have not been able to find a single case like the present. There is, however, an old case, in a report of high authority, (657) which fully sustains our conclusion. Atterton v. Harward, Croke Eliz., 349. That was case by a bailiff against a debtor for making his escape, whereby the creditor recovered of the sheriff, and he of the bailiff, on his assumpsit to save the sheriff harmless against all escapes; and so the bailiff sought to recover of the debtor for making his escape, by which tort he had been subjected to damage. Upon not guilty, it was found against the plaintiff. The court was of opinion "that the bailiff was not chargeable to the sheriff by law, but by his assumpsit, and this, being his voluntary act, shall be no cause to *Page 448 charge the defendant, but shall make himself liable." But they argued, "if the bailiff had been chargeable by law, without such promise, an action did lie for him against the defendant, who caused him to be charged."
Upon the authority of this case, in Kain v. Ostrander, 8 John, 207, it is said, "the usual course is to resort to his bond of indemnity, and if he has omitted to take one, the jailer is only answerable on his implied undertaking to serve the sheriff with diligence and fidelity." And the decision is in favor of the jailer, on the ground that there was no evidence of that culpable neglect which is requisite to make a jailer liable.
PER CURIAM. Judgment reversed.
Cited: Brock v. King, 48 N.C. 49.
(659)