Chappell v. Fidelity & Deposit Co. of Maryland

• Decision Date: 18 June 1940
• Docket Number: 15106.
• Parties: CHAPPELL v. FIDELITY & DEPOSIT CO. OF MARYLAND.
• Court: South Carolina Supreme Court

9 S.E.2d 592

194 S.C. 124

CHAPPELL v. FIDELITY & DEPOSIT CO. OF MARYLAND.

No. 15106.

Supreme Court of South Carolina

June 18, 1940

Sloan & Sloan, of Columbia, and Harold Major, of Anderson, for appellant.

Hemphill & Hemphill, of Chester, for respondent.

STUKES Justice.

Plaintiff a citizen and resident of Chester County, this State, brought this action in the Court of Common Pleas for Chester County for damages to him resulting from the alleged tortious acts of an inspector or law enforcement agent of the Motor Transport Division of the Public Service Commission against the surety upon the official bond of the officer; the bond is in the usual form, conditioned for the faithful discharge by the principal of the duties of his office; the sole defendant is a foreign corporation (of another State) engaged in the bonding business in this State, including Chester County, and service of the summons was made upon its agent in the city of Chester, of which latter there is no question as to the propriety. The alleged tortious acts of defendant's principal were committed in Greenwood County in the alleged course of the discharge of his official duties and when the plaintiff was temporarily in that county; such principal, and enforcement officer, as aforesaid, of the State Public Service Commission, is a resident of Anderson County.

The defendant made a special appearance and objected to the jurisdiction of the Court upon the ground that the latter does not have jurisdiction of the entire case, having no jurisdiction of the cause of action or the subject of the action, that the cause of action did not arise in Chester County and no part of the subject thereof is therein situate that the subject of the action is a controversy with respect to the performance of duty by a public officer, arising in Greenwood County, the Courts of which have exclusive jurisdiction of such matters and of said officer and, on that account, of the defendant, his surety, a foreign corporation and finally that defendant is a foreign corporation and its principal is a resident of Anderson County, the Courts of which have jurisdiction of him.

In support of its position defendant relied upon the complaint, an affidavit of the officer, its principal, and a copy of the bond. The affidavit was to the effect that deponent is an officer and inspector as alleged in the complaint, "that the subject of the alleged cause of action therein and all of the facts and circumstances incident thereto arose in Greenwood County", and that the deponent was then and is now a resident of Anderson County. As above indicated, the form of the bond set forth is of the usual official bond conditioned that the principal shall well and truly perform the duties of his office, and is the joint and several obligation of the parties.

The presiding Circuit Judge overruled defendant's objections to the jurisdiction of the Court of Common Pleas for Chester County, reciting that said Court is one of original and general jurisdiction in all civil cases and pointing out that no question was made as to the service of the summons and complaint upon defendant and that his decision was simply upon the jurisdiction of the Court and no question of venue was before him.

From such order defendant prosecutes this appeal upon several exceptions upon which it bases the following quoted questions for decision by this Court:

"I. Did the Court of Common Pleas for Chester County have jurisdiction in the action against the surety as the sole defendant when it did not have jurisdiction of the entire case because the cause of action arose in and the subject of the action was situated in Greenwood County?

"II. Did the Court of Common Pleas for Chester County have jurisdiction in the action against the surety as the sole defendant when it did not have jurisdiction of the entire case because its principal resided in Anderson County.

"III. Are these questions jurisdictional or do they relate to the venue or the place of the trial of the action?"

These questions really make but one, to wit, has the Court of Common Pleas for Chester County jurisdiction of this action? It is within narrow compass.

As far back as almost a century ago (1842), it was held in this State that the official bond of an officer may be sued for injury and damage resulting from official default in the performance of duties, and that without any special Act of the Legislature so authorizing. Treasurer v. DeSaussure, 2 Speers 186. And this old case, then properly an action of debt, was brought against the administrator of one of the sureties, the official or his representative not having been included as a defendant. Now, Section 3054 of the 1932 Code provides in part as follows: "The bond of any public officer in this State may at all times be sued on by the public, any corporation, or private person, aggrieved by any misconduct of any such public officer ***." The bond is in effect a contract. 22 R.C.L. 496. It follows that an action upon it alone, as here, is an action upon contract. 1 C.J.S., Actions, § 49, p. 1107. Thus that contract, executed and to be performed within this State, is the subject of this action. Ophuls & Hill v. Carolina Ice & Fuel Co., 160 S.C. 441, 158 S.E. 824, and authorities therein cited by the author of the opinion, the present Chief Justice.

The applicable statute provides that suit may be brought in the Courts of this State by a resident against a foreign corporation doing business in this State upon...