Bencie v. Williams

• Decision Date: 09 May 1949
• Docket Number: Gen. No. 49F3.
• Citation: 86 N.E.2d 258,337 Ill.App. 414
• Parties: BENCIE v. WILLIAMS et al.
• Court: United States Appellate Court of Illinois

337 Ill.App. 414

86 N.E.2d 258

BENCIE

v.WILLIAMS et al.

Gen. No. 49F3.

Appellate Court of Illinois, Fourth District.

May 9, 1949.

Appeal from Circuit Court, Franklin County; B. W. Eovaldi, Judge.

Action by Frank Bencie against Ralph L. Williams and the Fidelity & Casualty Company of New York, a corporation, to recover for injuries sustained by plaintiff when shot by Ralph L. Williams. From judgment for plaintiff, the Fidelity & Casualty Company of New York, a corporation, appeals.

Judgment affirmed.William Greene, of Chicago, and Hickman & Hickman, of Benton, for appellant.

Marion M. Hart, of Benton, and Frank E. Trobaugh and Stephen E. Brondos, both of West Frankfort, for appellee.

SCHEINEMAN, Justice.

Plaintiff, Frank Bencie, sued the defendant, Ralph L. Williams, for damages resulting from personal injuries suffered when plaintiff was shot with a revolver by said defendant, who was a police officer. The Fidelity and Casualty Company of New York (appellant) was joined as a defendant in its capacity as surety upon the policeman's official bond in the sum of $5,000.00.

The ad damnum was $25,000.00 as to Williams and $5,000.00 as to his surety. The jury was handed six forms of verdict and an instruction thereon, three of them being plaintiff's verdicts, one finding both defendants guilty and one against each defendant separately; the other three were the converse ‘not guilty’ verdicts. The jury found for the plaintiff and filled out and returned all three ‘guilty’ verdicts; the one against both defendants jointly fixed damages at $5,750.00, the second against the surety alone was for $5,000.00 and the third against Williams alone was for $750.00.

After the jury was discharged, the court heard and denied defendants' motion to set aside the verdicts, motion for judgment notwithstanding the verdicts and in the alternative for a new trial. Thereupon the court construed the verdicts and found that the jury intended to fix the damages for plaintiff at $5,750.00; that defendant, Williams, was liable for that amount and for costs; that the surety was jointly liable in the maximum sum of $5,000.00. The court devised and entered a judgment designed to achieve that result. No point has been made as to the form of the judgment, except that the court could not so construe the verdicts.

The surety prosecutes this appeal and has assigned and argued four points as errors in the trial; 1, That the evidence wholly fails to show that plaintiff's injuries resulted from any official act of the police officer; 2, That the jury's verdicts were improper and could not be made the basis of a legal judgment; 3, That plaintiff's case was erroneously tried on the theory that the two defendants were joint tort-feasors; and 4, That the court admitted harmful and prejudicial evidence offered by plaintiff. Since the first and fourth points concern evidence, they will be considered together.

The evidence for plaintiff was that Williams was the Chief of Police or Village Marshal of the Village of Royalton, that this was a full-time job, that he was on call at all times, that it was his duty to keep the peace and make arrests when proper, that part of his duty was to police the taverns, going from one to the other, to maintain order. That on the morning of the day in question, he entered a certain tavern where the plaintiff and a friend named Joe Curto were peaceably standing at the bar, that Joe Curto asked the officer a civil question, that the officer then stepped back, drew his revolver and fired a bullet which struck the left leg of plaintiff above the ankle and proceeded down along the tibia through the ankle joint, causing severe injuries and a permanent handicap.

Officer Williams testified that his purpose in entering the tavern was to deliver to the bartender some tickets for the Police and Firemen's Ball. He was somewhat evasive on other questions, but admitted that he had been called at his home that morning and informed there were some drunks in town, that he went up town and entered the tavern looking in a general way for drunks. He admitted taking the revolver from his pocket and that it fired a bullet into plaintiff's foot, but claimed this was accidental, and denied any intent to fire the gun. Other evidence indicated this statement was false, but we do not here review it, since no point has been made as to the sufficiency of the case in this respect.

Plaintiff's proof indicates this officer was engaged in the performance of his official duties at the time of the shooting. It was his duty to patrol and police his beat, and this he was doing. Of course the shooting was wrongful and illegal, but his surety cannot escape liability on that ground. An officer is not liable for injuries he may cause in the course of properly and faithfully performing his duties according to law, and therefore, his surety would never be liable in such case, for it is not liable unless the principal is. The only purpose in having a bond, and the only time there is any liability thereon, is in case the officer acts wrongfully instead of faithfully in the performance of his duty. The official bond is required as indemnity against the use of an official position for wrongful acts done under color of office. Greenberg v. People, 225 Ill. 174, 80 N.E. 100, 8 L.R.A.,N.S., 1223, 116 Am.St.Rep. 127;Campbell v. People, 154 Ill. 595, 39 N.E. 578; 43 Am.Jur. ‘Public Officers' § 418. Under the evidence the jury could properly find that Williams was acting under color of office.

Over the objection of the defense, the court admitted evidence of a similar incident involving the same officer and one of the same parties at the bar, namely Joe Curto, which had occurred about a month previously. On that occasion, it was testified, this officer had likewise...