I concur as to respondent Cromwell and his surety. I dissent as to respondent McMillan and his surety. The demurrer was properly sustained, therefore, on the ground that there was a misjoinder of parties defendant.
Eliminating respondent Cromwell and his surety, however, leaves for determination the question of whether the complaint states a cause of action against respondent McMillan and his surety, and if so, whether it is ambiguous, unintelligible, and uncertain. There is no ambiguity or uncertainty as to the essential facts, and they are clearly and intelligibly set forth.
The demurrers, of course, admit the factual allegations of the complaint well pleaded, which must, therefore, for the purpose of testing the sufficiency and adequacy of the complaint as stating a cause of action, be taken as true.
The criminal complaint filed against O'Connor by Hess charging him with assault with a deadly weapon was based upon O'Connor's attempt to shoot his (O'Connor's) wife. Respondent McMillan definitely knew that it was really for Mrs. O'Connor's safety and protection that O'Connor *Page 362 was bound over to the district court and placed in respondent's custody pending his trial upon said charge.
This portion of paragraph 8 of the complaint,
"on the said 26th day of September, 1940, and at all times thereafter the only order or writ under which the said Dan O'Connor was confined was the order of commitment heretofore described as being issued by the said Honorable M.G. Whitney as Probate Judge on the 27th day of August, 1940, directing that Dan O'Connor be held and detained upon the charge of assault with a deadly weapon",
is in words which leave no doubt as to the meaning therein contained that no other order of any kind relative to the custody, incarceration, release, or transfer of O'Connor appears in the record because there was none. Since there was no other order, it necessarily could not appear in the record. A pleader cannot put into the record something which does not exist. Therefore, for the purpose of testing the sufficiency of the complaint the only order authorizing the sheriff to take any action in connection with O'Connor was the commitment under which O'Connor was remanded to the custody of the sheriff to be held and detained by him until he was legally discharged by an order of a court of competent jurisdiction, and otherwise to have O'Connor present for his trial in the district court.
Paragraph 7 of the complaint leaves no room for any construction or interpretation thereof justifying an assumption of good faith on the part of the sheriff.
"VII. That thereafter, to-wit; on the 25th day of September, 1940, in violation of said order of commitment then in force and effect, the said defendant S.J. McMillan carelessly, negligently, and unreasonably relieved said Dan O'Connor of his detention in the Kootenai County jail and caused his deputy Walter Cox to take such prisoner out of Kootenai County and to deliver him to the defendant James O. Cromwell as superintendent of the State Hospital South at Blackfoot, Idaho, on the 26th day of September, 1940."
The statements in the majority opinion that
"Respondents were in no way responsible for appellant's presence at the home of Grace Wark O'Connor and neither directly nor indirectly subjected appellant to the danger from which he suffered"
and that
"no facts or circumstances are alleged that would in any way indicate or from which an inference could be drawn, *Page 363 that their [evidently including appellant sheriff] conduct was `wanton', i. e., `a reckless disregard for the safety of others' "
evidently overlook the allegations in the complaint, admitted by the demurrer, that
"thereafter the defendants S.J. McMillan * * *, having it within their power to apprehend the said Dan O'Connor and take him back into custody, carelessly, negligently, and wantonly permitted the said Dan O'Connor to remain at large and made no effort to apprehend him or to restrain him from his homicidal intentions and insane impulses, contrary to the proper and valid order of commitment as aforesaid; that various persons thereafter notified the defendant S.J. McMillan that Dan O'Connor was at large in Kootenai County and that the said defendant S.J. McMillan carelessly and negligently and in breach of duty made no attempt to apprehend him, although it was within his power to have done so;
"X. That the plaintiff was at all times mentioned herein an employee of said Grace Wark O'Connor and that his duties were to perform manual labor for the said Grace Wark O'Connor and, as said Dan O'Connor well knew, to furnish her and her family with protection against the said Dan O'Connor;
"XI. That, as a proximate result of the negligence and violation of the order of commitment hereinbefore referred to, on the 3rd day of May, 1941, the said Dan O'Connor, acting under insane and uncontrollable impulses, possessed himself of a shotgun and proceeded to the residence of Grace Wark O'Connor and her family and of the plaintiff near Cataldo, in Shoshone County, Idaho, and began to shoot at them, and did, with said shotgun, at such time and place shoot the plaintiff causing about thirty large size lead shot to enter his legs between the hips and the ankles and severely wounding him and causing him pain and suffering and damage to the extent of $25,000.00 as hereinafter more specifically set forth."
Mrs. O'Connor was not a stranger to the proceedings whereby O'Connor was placed in the custody of respondent sheriff. She was not just any one of the general body politic in Kootenai County or the State of Idaho. She had directly appealed, through Hess, to the chief law officer of the county for protection by O'Connor's arrest. It is *Page 364 alleged that in wanton, wilful, and negligent disregard of this court order, the sheriff turned O'Connor loose, which was the result of the sheriff's actions, as appears admitted from this statement in the majority opinion: "The acts of the sheriff * * * in permitting O'Connor to escape and be at large." No interpretation or construction of the complaint is necessary to determine that it is therein alleged that respondent sheriff was notified that O'Connor was at large in Kootenai County where his wife resided and whom he had tried to kill, and that the sheriff had it in his power to retake O'Connor into his custody after receiving such information and negligently failed to do so. This was a flagrant violation of the order of commitment. Cornell v. Mason, 46 Idaho 112, 268 P. 8; Price v.Pace, 50 Idaho 353, 296 P. 189. Sablack and Jacobson had been hired by Mrs. O'Connor to defend and protect her against her husband. O'Connor having been once arrested for making such attempt and having been turned loose by the sheriff, Mrs. O'Connor was without further aid or assistance in that direction and was certainly justified in employing Sablack and Jacobson to protect her. Their defense of her therefore became her defense. What justification was there for the respondent sheriff to show such tender solicitude for the well-being of O'Connor by assertedly taking him to the asylum for his (O'Connor's) benefit, and utterly disregarding Mrs. O'Connor's resultant defenseless condition, to say nothing of the respondent's absolute flaunting of the court order requiring him to retain O'Connor in his custody? His duty in that particular was mandatory and not subject to the exercise of any discretion whatever. Cornell v. Mason, supra; Secs. 30-1701 and30-1702, I.C.A. Under the pleading it is not left to conjecture as to what respondent should have foreseen, but knowledge and negligence on his part are alleged. The rule heretofore announced is compellingly applicable. Burkland v. Oregon ShortLine R. R. Co., 56 Idaho 703, 58 P.2d 773.
As further justification for exculpating respondent and his surety from liability the majority opinion states:
"The acts of the sheriff * * *, in permitting O'Connor to escape and be at large, were only a remote cause in comparison with the negligence of appellant." [Emphasis mine.]
Wherein were Sablack and Jacobson negligent? Where is allegation to support such an astounding statement? If Sablack and Jacobson were negligent in trying to defend *Page 365 Mrs. O'Connor against her husband, who had been turned loose by the chief peace officer of the county and whom she, as well as the other citizens, had the right to look to for protection, then, of course, she was negligent in seeking protection. Were Sablack and Jacobson negligent because they were not agile and adroit in dodging the bullets from O'Connor's gun? What negligence was Mrs. O'Connor guilty of in seeking such protection as she could when the sworn officer of the law had absolutely violated his duty by turning her husband loose? The imputation of negligence in sustaining a demurrer to a complaint where contributory negligence has not been plead, no proof has been offered, and no jury has passed thereon, and thereby holding the sheriff and his surety not liable for flagrant violation of his duties is without justification. (Kusah v. McCorkle, 100 Wash. 318, 170 P. 1023, 1918C L.R.A. 1158.) There was no negligence on Mrs. O'Connor's part or on that of her defenders. (State v. Cloud, 150 Miss. 697,116 So. 814.) If there is any such issue, it at least should be passed on by a jury. (McCarty v. Boise City Canal Co., 2 Idaho 245,10 P. 623; Allan v. Oregon Short Line R. Co., 60 Idaho 267,90 P.2d 707.)
The majority opinion further rests upon a distinction between liability in connection with civil actions and criminal actions. In effect, as I understand, the opinion holds that the sheriff may be liable for damages in dereliction of duty in connection with civil process but not in connection with criminal process because the one involves a duty to the individual, the other a duty to the public, relying uponWorden v. Witt, 4 Idaho 404, 39 P. 1114 and Corker v. Pence,12 Idaho 152, 85 P. 388. These cases and those of similar import (Davis v. State, 30 Idaho 137, 163 P. 373; Youmans v.Thornton, 31 Idaho 10, 168 P. 1141) held that neither a county or county commissioners were liable for their negligence in either constructing or maintaining defective roads or bridges — in the earlier cases on the ground that to so hold would bankrupt the counties and prevent anyone from holding the office of county commissioner and that there was no statute imposing such liability; later placed upon the ground that the county, being an arm of the state, was immune as a part of the sovereignty and a governmental instrumentality. None of these cases considered the liability of a sheriff on his bond for alleged negligent acts in connection with the conduct of his office. *Page 366 Further reliance is placed on South v. Maryland, 59 S. Ct. 396,15 L. ed. 433. The force of that case as contended for by respondents has at least been weakened in that it has been construed as not making removal from office the sole remedy for neglect of duty by a sheriff and that damages may be recovered for such neglect resulting in an escape. (State of Tennessee v.Hill, 60 Fed. 1005.) True, the state there sued, but the damage herein was greater and the injury more personally traceable than therein. Furthermore, the absolution from liability declared in South v. Maryland, supra, was because there was no violation of duty in connection with process. (State of Indianav. Gobin, 94 Fed. 48.) Herein there was absolute violation of the mandate of valid process.
In State v. American Surety Co., 26 Idaho 652, 145 P. 1097, the court had occasion to consider the liability of an officer to an individual who had suffered the injury because of the official misconduct of the officer, and applied the test suggested in the majority opinion. That case involved the failure of a bank examiner to close a bank after he knew, or should have known, that it was insolvent. The suit was instituted by the depositors who placed money in such bank after that time and prior to the time the bank was closed. The court held they were entitled to recover against the bank examiner and his bondsmen. This holding supports appellants' contention herein. The majority opinion then proceeds to hold that there is no liability because the acts of the sheriff in turning O'Connor loose were not the proximate cause, asserting that it could not have been reasonably foreseen that as a result of such escape O'Connor would kill anybody. This court has recognized the liability of a peace officer in connection with neglect and violation of duty in connection with criminal process. (Madsen v. Hutchison, 49 Idaho 358, 290 P. 208;Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957.)
This court has held the question of proximate cause is one for the jury.
"Appellants seek to recover in this action upon the theory that the keeping of dangerous explosives, in the instant case dynamite caps, in the place and in the manner they were kept by respondent constituted such negligence as would render respondent liable to appellants for the injuries sustained by William George Miller. Negligence, as well as the proximate cause of the injury, are questions of fact *Page 367 for the jury, where the facts, or the inference to be drawn therefrom, are in any degree doubtful or such that fair minded men might reach different conclusions from the facts. [Citing authorities.] It is contended that the chain of causation is broken, and that the original negligence, if any, was not the proximate cause of the injury. While the picking of the dynamite cap with the wire may have been the immediate cause, or the nearest cause in point of time, it does not necessarily follow as a matter of law that it was the proximate cause. The rule of law applicable in such a situation is that where the defendant was guilty of original negligence, and, from the evidence, the inference may be reasonably drawn that the original negligence placed in motion the intervening cause of the injury, but that such injury would not have happened if it had not been for the original negligence, the defendant will be held liable. [Citing authority.] Where several causes combine to produce an injury, the last intervening cause is commonly referred to as the immediate cause, although some other agency, more removed in time or space may, in casual relation, be nearer to the result, and thus be the proximate responsible cause. [Citing authorities.] The jury would be called upon to determine whether respondent had or had not exercised that degree of care required to be exercised by it to prevent injury to a child of tender years by explosives kept upon its property. If respondent had failed to exercise that degree of care required, the jury would then be called upon to determine whether or not it was the proximate cause of the injury, or whether the obtaining of the explosives in the manner in which they were obtained by William George Miller, the way in which they were handled, and ultimately the picking of the cap with a wire, constituted such an intervening cause or causes as would relieve respondent of liability. [Citing authority.]" (Miller v. Gooding Highway Dist., 55 Idaho 258,41 P.2d 625.)
Even if there had been two concurring causes, i.e., O'Connor's presence and Sablack's and Jacobson's presence, and the latter were negligent, it would be for the jury to say which was the proximate cause. (Miller v. Northern Pac. Ry.Co., 24 Idaho 567, 135 P. 845; Idaho Gold Dredging Corp. v.Boise Payette Lbr. Co., 54 Idaho 765, 37 P.2d 407.) And as stated in Carron v. Guido, 54 Idaho 494, 33 P.2d 345:
"On the question of proximate cause Binford v. Johnston, *Page 368 82 Ind. 426, 42 Am. Rep. 508, is in point. That was an action for damages because of the death of a boy who was killed by a bullet fired from a toy pistol by his brother, a child six years old, the ammunition having been sold by defendant to children for use in the pistol. The court said:
" `. . . it is firmly settled that the intervention of a third person or of other and new direct causes does not preclude a recovery if the injury was the natural or probable result of the original wrong . . . The rule goes so far as to hold that the original wrong-doer is responsible, even though the agency of a second wrong-doer intervened . . .
" `Although the act of the lad Bertie intervened between the original wrong and the injury, we cannot deny a recovery if we find that the injury was the natural or probable result of appellant's original wrong. In Henry v. Southern Pacific R.Co., 50 Cal. 176, it was said: "A long series of judicial decisions has defined proximate, or immediate and direct damages to be the ordinary and natural results of the negligence; such as are usual and as therefore might have been expected." '
"The Indiana court further said:
" `In Weick v. Lander, 75 Ill. 93, it is held that "where an act unlawful in itself is done, from which an injury may reasonably and naturally be expected to result, the injury, when it occurs, will be traced back and visited upon the original wrong-doer." In the course of the opinion and as a commentary upon cases reviewed, it is said: "The principle announced is, that whoever does an unlawful act is to be regarded as the doer of all that follows." ' (See, also,Anderson v. Settergren, 100 Minn. 294, 111 N.W. 279.)"
The question of intervening cause is for the jury. Allen v.Cavin, 179 Okla. 460, 66 P.2d 40.
Under the majority opinion, a sheriff, whenever he deems it for the best interests of a defendant not to comply with the process of a court of record, may at his own whim and pleasure pursue such actions as he deems best for the particular defendant without any regard whatever to the safety or well-being of the person for whose protection the particular defendant has been arrested or society at large. To condone and approve such a situation, it seems to me, would be a travesty on justice and a mockery of orders of the courts. When a homicidal maniac, who has once displayed *Page 369 and attempted to carry into effect his lethal proclivities, has been placed in the custody of a sheriff under valid process, for the sheriff to thereafter turn him loose shows an utter disregard for the safety of the citizens of the community where the insane person may be roaming at large.
Budge, J., concurs in this dissent.