Trammell v. Fidelity & Casualty Co. of New York

• Decision Date: 22 May 1942
• Docket Number: Civ. A. No. 543.
• Citation: 45 F. Supp. 366
• Court: U.S. District Court — District of South Carolina
• Parties: TRAMMELL v. FIDELITY & CASUALTY CO. OF NEW YORK.

45 F. Supp. 366

TRAMMELL v. FIDELITY & CASUALTY CO. OF NEW YORK.

Civ. A. No. 543.

District Court, E. D. South Carolina.

May 22, 1942.

McEachin & Townsend, of Florence, S. C., for plaintiff.

Legge & Gibbs, of Charleston, S. C., and Willcox, Hardee, Houck & Wallace, of Florence, S. C., for defendant.

WARING, District Judge.

Two motions were filed in the above-entitled cause: the first for an order transferring and removing the cause from the Florence Division to the Charleston Division; and the second a motion to dismiss the complaint because it fails to state a claim upon which relief can be granted against the defendant. By an order dated May 28, 1941, the Honorable Alva M. Lumpkin, then presiding judge, extended the time for answering or otherwise pleading until the motions could be heard and passed upon. Both of these motions were presented and argued before me at the term of court held in the Florence Division on May 6, 1942.

The first motion, namely, the one to transfer from the Florence Division to the Charleston Division, was made upon the ground that the plaintiff is a resident of Dorchester County, which is in the Charleston Division, and the defendant is a nonresident corporation. The plaintiff did not oppose this motion and assented thereto and accordingly the motion will be granted and the cause transferred from the Florence Division to the Charleston Division.

The second matter is a motion to dismiss the entire complaint upon the ground that the same does not set out facts sufficient to constitute a cause of action and is practically in the nature of a demurrer under the old practice in this court, before demurrers were abolished and motions to dismiss substituted therefor.

The motion is not drawn in conformity with the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, in that it fails to state with particularity the grounds for dismissal. However, this point was not raised by the plaintiff who seemed fully advised of the grounds of the motion and the merits of the motion were fully argued and I shall, therefore, consider it upon that basis.

The complaint is a suit for $10,000 against the defendant, which is the surety on the bond of H. H. Jessen, Sheriff of Dorchester County. The complaint sets up three causes of action, which are as follows:

In the first cause of action it is alleged that the defendant, a nonresident corporation, is a bonding company doing business in South Carolina and is the surety on the bond of H. H. Jessen, Sheriff of Dorchester County, in the sum of $10,000, the said bond being conditioned for the sheriff performing "the duties as now or hereafter required by law during the whole period he may continue in said office". It is alleged that under Section 3800 of the Code of South Carolina and the amendments thereto that the sheriff is empowered by law to appoint two or more rural policemen "of good habits and known as men of courage, coolness and discretion, and who are not addicted to the use of alcoholic liquors or drugs". Some of the duties and powers of the policemen are enumerated and it is alleged that the sheriff is to require bond of $500 of said rural policemen for the proper performance of their duties. The complaint further alleges that under the provisions of Section 3486 of the South Carolina Code the said sheriff is liable under his official bond for neglect of duty or misconduct of his deputies, under which classification are included rural policemen. The complaint then goes on to allege that two of the rural policemen, to-wit, A. M. Thrower and W. T. Doyle, while acting "about their statutory duties" committed an assault and battery upon the plaintiff.

The second cause of action adopts by reference most of the allegations of the first cause of action and in addition alleges that the rural policemen were appointed by Sheriff Jessen under his authority as sheriff and were "notoriously known throughout Dorchester County to be rough, disorderly and drunken characters" and that investigation on the part of the sheriff would have revealed their unfitness to serve because of their lack of the requirements hereinabove set forth. Under this cause of action it is claimed that the selection and appointment by Sheriff Jessen of Thrower and Doyle were a failure to well and truly perform his duties as sheriff and "constituted a breach of his official bond whereby the plaintiff sustained painful injuries".

The third cause of action sets forth the main allegations of the first cause and further alleges the bond of $500 required to be given under Section 3800 of the South Carolina Code by A. M. Thrower as a rural policeman was not required by Sheriff Jessen and that his failure to do so rendered him liable and constituted a breach of the sheriff's own bond.

First Cause of Action. The theory of the first cause of action is that the rural policemen who were alleged to have committed the assault and battery were in effect deputy sheriffs and the official bond of the sheriff would, therefore, be responsible for their action. Section 3486 of the Code provides that the sheriff may appoint one or more deputies to be approved by the Judge of the Circuit Court. It further provides "he may take such bond and security from his deputy as he shall deem necessary to secure the faithful discharge of the duties of the appointment; but he shall in all cases be answerable for neglect of duty or misconduct in office of such deputy."

From the foregoing it is clear that the sheriff is responsible for the acts of his deputies. The giving of bond by a deputy is not mandatory, but the sheriff may require it and it is quite evident that this permission is for his own protection if he deems it necessary.

Section 3489 provides for the appointment by the sheriff of special deputies for certain purposes and provides "and for their conduct he shall be responsible."

The case of Rutledge v. Small, 192 S.C. 254, 6 S.E.2d 260, has been cited to me by both parties to this cause as setting forth the duties and liabilities of a sheriff for the acts of his deputies. The statutes themselves are so clear that this does not really need any citation of authority and I believe no one will question that a sheriff is responsible for the acts of his deputies performed in the course of his official business and of course the sheriff's bond will be responsible for any damages that may be suffered by any party as a result of negligence or improper acts in performance of such business.

But the question in this cause is whether Thrower and Doyle were acting as deputy sheriffs and whether as claimed by the complaint, rural policemen are included under the classification of deputies so as to render the sheriff's official bond subject to suit for the improper acts alleged to have been committed by such rural policemen.

I have made careful examination of the Act under which rural policemen for Dorchester County are authorized and appointed. Section 3800 of the South Carolina Code provides as follows:

"§ 3800. Rural Police System in Dorchester County. — (1) Creation. — A rural police system is hereby established in Dorchester County, composed of two or more rural policemen to be appointed by the sheriff. Said policemen shall be selected from the registered electors of said county and to be able-bodied men of good habits and known as men of courage, coolness and discretion, and who are not addicted to the use of alcoholic liquors or drugs; and shall hold office for a term of two years, subject to removal by the sheriff, or by the Governor under existing provisions of law."

The balance of the Section covers the duties of such policemen and other matters hereinafter referred to.

There is nothing specific in this section providing that the sheriff shall be responsible for the acts of policemen such as there is in the section providing for the appointment of deputy, or special deputy, sheriffs. The duties of the policemen are set forth and it is provided that they shall be under "the general direction and control of the sheriff". It is further provided that every policeman shall take a prescribed oath of office and that "Each said policeman shall, before entering upon the duties of his office, enter into bond with good surety, to be approved by the county board of commissioners and clerk of court, and payable to the county, in the sum of five hundred ($500.00) dollars, conditioned for the faithful performance of their duties and for such damages as may be sustained by reason of their malfeasance or misfeasance in office or abuse of his authority; and it shall be the duty of the sheriff, supervisor and grand jury of the county to investigate promptly any complaint made against such policemen for neglect of duty or for misuse of power, said bond to be filed with and kept by the clerk of court."

It will thus be noted that the rural policemen are statutory officers with certain prescribed duties and responsibilities and the statutes provide the amount of the bond to be given by each policeman. While these policemen are subject to the general control and direction of the sheriff, no where does it appear that they are to be considered as his deputies and the provision requiring such policemen to give bond to my mind makes it quite clear that the Legislature intended that such bond should protect any persons suffering from illegal acts by the policemen.

From an examination of the Code of South Carolina it will be seen that Article 8 (Sections 3790 to 3817, inclusive) provides for the appointments, rights, duties, powers and responsibilities of various police officers and particularly rural police. The various sections provide for appointment of rural policemen in certain different counties. While it is not necessary to discuss all of them much light is thrown on the present problem by a brief survey of the methods of appointment and the duties and responsibilities imposed under some of these different se...