CHAUDOIN et al.
As Modified on Denial of Rehearing May 6, 1948.
Appeal from Superior Court, Greenlee County; Henry C. Kelly, Judge.
Kramer, Morrison, Roche & Perry, of Phoenix, Porter Murry, of Clifton, and Conner & Jones, of Tucson, for appellants.
H. Earle Rogge, of Clifton, Ralph Bilby, Harold C. Warnock, and Knapp, Boyle, Bilby & Thompson, all of Tucson, for appellee.
Stanford, Chief Justice. La Prade and Udall, JJ., concur.
Stanford, Chief Justice.
[67 Ariz. 145] We are designating the parties to this action as they were in the trial court, the appellee as plaintiff, and appellants as defendants.
On April 21, 1945, at Morenci, Arizona, while plaintiff was in the bar and restaurant of the Longfellow Inn at approximately 9 P.M., defendant Bass, in arresting plaintiff for disturbing the peace, fired a teargas gun, from a distance of approximately three feet, into the face of plaintiff. At the time of the arrest defendant Bass, who was wearing the badge of a deputy sheriff, was one of the regularly appointed deputies of his codefendant Joe Chaudoin, then Sheriff of Greenlee County in which the town of Morenci is located.
The testimony shows that as he made the arrest he stated to plaintiff: "You are under arrest. I am a deputy sheriff." The testimony further shows that the gas gun was issued to him by the sheriff's office, and that he had carried the same for two or three years prior to the time of arrest, and had received instructions about the use of same under the supervision of the sheriff's office.
When the gas struck plaintiff's eyes he became helpless and defendant Bass pulled him out into the hall, and, without rendering any aid to plaintiff, placed him in the county lockup at Morenci. Defendant Bass immediately thereafter left Morenci for several days, and the duty of caring for plaintiff devolved on other personnel of the sheriff's office.
The tear gas having blinded the plaintiff, and having no facilities in jail, he attempted to care for himself by swabbing his eyes with a dirty sock moistened from the water in the toilet bowl. The next morning he was taken by Deputy Sheriff Chapman to the hospital.
Other facts will be related as we proceed with the case.
This action was brought by the plaintiff against the defendants herein asking for damages in the sum of $ 50,000 against the sheriff and his deputy, and for judgment [67 Ariz. 146] against the defendant The Hartford Accident & Indemnity Company, surety on the bond of the sheriff, in the sum of $ 10,000.
The case was tried in November, 1946, before the court without a jury. Judgment was rendered on behalf of plaintiff against each of the defendants in the sum of $ 10,000. From the judgment so rendered the case was brought to this court on appeal.
The first assignment of error made by defendants Chaudoin and the Indemnity Company is that in the findings of fact of the
court no liability attached to the defendants Chaudoin and the Indemnity Company for the reason that the court did not find that the defendant Bass, as deputy sheriff, was making a lawful arrest of the plaintiff, but on the contrary found that the plaintiff Fuller was not committing or attempting to commit any aggressive act at said time, nor attempting to commit or threatening to commit bodily harm on defendant Bass.
The second assignment of error of Chaudoin and the Indemnity Company is that it was in the Longfellow Inn at Morenci, Arizona, where Bass was a constable, that the occurrence took place; that Bass had no warrant for the arrest of Fuller and had not been directed or instructed by the sheriff to arrest Fuller; that neither the sheriff, nor the sheriff's office, had any knowledge or notice of the occurrence before it happened; that Bass acted as a constable on his own judgment ...