Bayer v. MacOmb County Sheriff

Kelley, J.

Plaintiff seeks to recover civil damages from the sheriff and his department and a deputy sheriff for the alleged misconduct of the deputy sheriff. He alleges in his complaint that while he was under arrest at the county jail the defendant deputy sheriff struck him, inflicting serious injury. He does not allege that the sheriff aided or counselled in the assault. He appeals a summary judgment of dismissal as to defendants sheriff and sheriff’s department.

The single issue to be determined on appeal is whether the sheriff and the sheriff’s department can be held liable for the alleged assault and battery of a prisoner by a deputy sheriff.

Originally CL 1948, §§ 51.70 and 51.75 read as follows (emphasis supplied):

*174“Sec. 70. Each sheriff may appoint 1 or more deputies, for whose official acts he shall be in all respects responsible, and may revoke such appointments at his pleasure; and persons may also he deputed by any sheriff, by an instrument in writing, to do particular acts.

“Sec. 75. The sheriff shall have the charge and custody of the jails of his county, and of the prisoners in the same; and shall keep them himself, or by his deputy or jailer, for whose acts he shall be responsible."

PA 1952, No 110 deleted from these sections, respectively, the phrases for whose official acts he shall be in all respects responsible and for whose acts he shall be responsible, and inserted in § 51.70 the following unequivocal language (emphasis supplied) :

“Sec. 70. No sheriff shall be responsible for the acts, defaults and misconduct in office of any deputy sheriff."

By thus changing these statutes the legislature clearly expressed its intent that under no circumstances should a sheriff be responsible for the actions of any deputy. A sheriff’s mere hiring of a vicious deputy is not actionable in and of itself. If such a deputy unjustifiably beats a prisoner, such action is that of the deputy, for which the sheriff is by statute not responsible. The question as to whether he should be responsible is for the legislature to decide.

The doctrine of respondeat superior does not apply to a sheriff for his deputies’ acts, defaults or misconduct in the course of their duties. Bridgman v. Bunker (1968), 12 Mich App 44, 47. In Fernelius v. Pierce (1943), 22 Cal 2d 226 (138 P2d 12), no charter or statute, as in the present case, relieved *175the chief of police from liability for the acts of his subordinates.

The sheriff’s department, also named as a defendant, is an agency of the county. Const 1963, art 7, § 6 relieves a county from responsibility under the circumstances here alleged.

Affirmed. Costs to appellees.

Danhof, P. J., concurred.