J. C. Waters, Plaintiff-appellant, v. Austin Mcclary, Sheriff of Polk County, Tennessee, et al., Defendants-appellees.yvonne Waters, Plaintiff-appellant, v. Austin Mcclary, Sheriff of Polk County, Tennessee, et al., Defendants-appellees, 344 F.2d 75 (6th Cir. 1965)

This case presents the question of whether a sheriff and the surety on his official bond are liable for injuries and damages caused by the negligent operation of a county-owned automobile by a deputy sheriff while on routine patrol.

The jury returned a verdict of $50,000 in favor of plaintiff Yvonne Waters and $15,000 in favor of her husband against all four defendants, the deputy sheriff (driver of the automobile), Polk County, Tennessee (owner of the automobile), the sheriff and St. Paul Fire and Marine Insurance Company, the surety on the sheriff's official bond.¹ 

Thereafter, in an opinion published at 227 F. Supp. 462, the district court sustained the motion of the sheriff and his surety for a directed verdict notwithstanding the verdict of the jury, and set aside the verdict as to these two defendants. From this action plaintiffs have appealed, urging that this court reverse the judgment of the district court and reinstate the jury verdict.

The facts are largely undisputed. The district judge, the Honorable Frank W. Wilson, stated in his opinion that the evidence, when considered in the light most favorable to plaintiffs, shows that the deputy sheriff was on authorized routine patrol duty at the time of the accident; that he was in the process generally of enforcing the laws of the state, and that he had checked one beer tavern and was en route to check another one when the accident occurred; that he had no specific assignment, no specified investigation to make, and no official paper to serve or execute; that he was under no specific orders from the sheriff at the time of the accident; and that the deputy was guilty of negligence in the operation of the automobile which proximately caused extensive injuries to Mrs. Waters, in that he drove upon the wrong side of the highway and struck plaintiffs' automobile.

The sole question on this appeal is whether, under these facts, plaintiffs are entitled to recover against the sheriff and the surety on his official bond. In determining the question, we look to the law of Tennessee. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188.

The sheriff is required to execute and maintain an official bond under the provisions of a Tennessee statute.² 

The obligations covered by official bonds are spelled out in another statute,³  which has been held to apply to the sheriff. Jones v. State, 194 Tenn. 534, 253 S.W.2d 740.

The extent of the liability of the sheriff and his bondsmen for acts of his deputy was defined by the Supreme Court of Tennessee in Ivy v. Osborne, 152 Tenn. 470, 279 S.W. 384:

"Some authorities declare a sheriff liable for all official misconduct of his deputy, and also for acts not required of him by law, where the deputy assumes to act under color of office, and hold that such acts may include wrongs and trespasses done under color of office. Other authorities take the view that, in order to carry the liability to the principal, the act of the deputy must be by virtue of the office, and interpreting this rule it is held that, in order for the deputy's act to have that character, it must be done in an attempt to serve or execute a process, or under a statute giving him the right to arrest without a warrant, and if he acts otherwise he is doing so as an individual. 24 R.C.L., pp. 281, 282, par. 75. The Tennessee courts follow the rule last stated, upon the reasoning that the deputy acts in lieu of the sheriff and in his name, and representing the sheriff officially, and not as an agent, the authority of the deputy is limited to official acts." 152 Tenn. at 473, 279 S.W. at 384. (Emphasis supplied.)

In State v. National Surety Company, 162 Tenn. 547, 39 S.W.2d 581, the court applied the Ivy v. Osborne principle to a case where a drunken injured man in need of prompt medical and surgical attention was arrested and taken by a deputy sheriff to a prison rather than a hospital, and died the following day, holding that a right of action could be maintained against the sheriff and the surety on his bond.

Appellants urge that Ivy v. Osborne has been modified by subsequent decisions, and that a broader liability is imposed upon the sheriff and his surety by statute, T.C.A. § 8-1920 (see note 3). This statute originated with Tennessee's first official code as Section 771 of the Code of 1858, and has remained in effect without amendment continuously since that time. It was in force when the Supreme Court of Tennessee handed down its decision in Ivy v. Osborne, supra, in 1925, and its earlier decision to the same effect in McLendon v. State, 92 Tenn. 520, 22 S.W. 200, 21 L.R.A. 738, in 1893. Ivy v. Osborne has been cited with approval by the Supreme Court of Tennessee as recently as 1951, State v. Fisher, 193 Tenn. 147, 150, 245 S.W.2d 179 (opinion by Justice Burnett, who is now Chief Justice of Tennessee), and 1952, Jones v. State, etc., supra, 194 Tenn. 534, 539, 253 S.W.2d 740 (opinion by Chief Justice Neil); and by the Court of Appeals of Tennessee as recently as 1958, Jones v. Bozeman, 45 Tenn.App. 141, 151, 321 S.W.2d 832.

We find no reported case in which the Tennessee courts have held that a sheriff and the surety on his official bond are liable for the negligent acts of a deputy sheriff in driving an automobile on routine patrol.⁴ 

Appellants rely strongly upon Jones v. Buckelew, 247 Ala. 475, 25 So. 2d 23, in which the Supreme Court of Alabama, construing an Alabama statute almost identical to T.C.A. § 8-1920 (see note 3), held the official bondsman of a deputy sheriff to be liable for personal injuries caused by the negligent operation of an automobile by the deputy while "ferreting out crime."⁵  It should be here observed that the action before us is not against the sheriff for his own conduct, and therefore we need not consider whether the surety on his official bond would be holden. We emphasize too that no official bond of the deputy sheriff is involved in the matter before us, as was the case in Jones v. Buckelew. No question was there raised about the liability of the sheriff or his surety for the acts of a deputy, so the decision offers little help in deciding our present question. The Supreme Court of Alabama cited Ivy v. Osborne, supra, along with the decisions of a number of other states, but refused to follow them, recognizing that a different rule prevails in Alabama from that applied in Tennessee. Suffice to say that this court is bound by the law of Tennessee in the instant case, and not the law of other jurisdictions.

Many of the Tennessee decisions contain extended discussions of the common law distinction between the acts of a sheriff and his deputies by "virtue of office" and "color of office." We do not find it necessary to discuss or apply this distinction here, because it is now held that the distinction is abolished in Tennessee by the terms of T.C.A. § 8-1920 (see note 3). State v. Dunn, supra, 39 Tenn.App. 190, 282 S.W.2d 203. With respect to his relationship with plaintiffs at the time of the automobile accident here involved, the deputy was not acting either by "virtue of office" or "color of office" under the reasoning of the Tennessee decisions herein cited. The deputy sheriff in the instant case was not undertaking to arrest Mrs. Waters or serve any papers upon her at the time of the accident. His negligence in driving the automobile across the center line of the highway and striking the Waters automobile was not committed in the act of performing an official duty with respect to Mrs. Waters in his capacity as deputy sheriff or in exercising the power or authority of his office. We find no Tennessee authority authorizing us to enlarge the official bond of the sheriff into a policy of liability insurance rendering the surety liable for every act of negligence on the part of a deputy while operating a county-owned automobile on routine patrol.

Affirmed.