City of Mullens v. Davidson, 10154

• Decision Date: 20 December 1949
• Docket Number: No. 10154,10154
• Citation: 57 S.E.2d 1,133 W.Va. 557,13 A.L.R.2d 887
• Parties: , 13 A.L.R.2d 887 CITY OF MULLENS, v. DAVIDSON et al.
• Court: West Virginia Supreme Court

Page 1

57 S.E.2d 1

133 W.Va. 557, 13 A.L.R.2d 887

CITY OF MULLENS, v. DAVIDSON et al.

No. 10154.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 14, 1949.

Decided Dec. 20, 1949.

Syllabus by the Court.

1. In an action against the principal and the surety, upon an official bond of a municipal police officer, in which the declaration charges a breach of the bond by the malicious utterance, by the officer to the relator in the presence and the hearing of other persons, of insulting words made actionable by Code, 55-7-2, and as to which the statute provides that 'No demurrer shall preclude a jury from passing thereon', the court may not entertain a demurrer to the declaration upon any ground which involves the construction or the meaning of the words spoken by the officer.

2. Defamatory utterances made by a municipal police officer while engaged in the performance of a duty imposed upon him by the proper authorities of the municipality, under color of his office, are not assolutely, but qualifiedly, privileged communications; and the qualified privilege is defeated if such utterances are made by such officer with actual malice.

3. 'The existence or nonexistence of a qualifiedly privileged occasion, and whether the privilege has been exceeded, in the absence of a controversy as to facts, are questions of law for the court.' Point 3, Syllabus, Swearingen v. Parkersburg Sentinel Company, 125 W.Va. 731, 26 S.E.2d 209.

4. A surety upon the official bond of an officer, conditioned for the faithful performance of his duties, is liable for the wrongful defamatory utterances of the officer while acting under color of his office.

Kingdon & Kingdon, Mullens, Frederick T. Kingdon, Mullens, for plaintiffs in error.

Jackson, Kelly, Morrison & Moxley, Charleston, W. T. O'Farrell, Charleston, for defendants in error.

HAYMOND, President.

This action of assumpsit was instituted in the Circuit Court of Wyoming County by and in the names of the City of Mullens, a municipal corporation, and the State of West Virginia, as plaintiffs, for the use and benefit of Robert R. Jones, to recover from the defendants, Louis Haynes Davidson, as principal, and Fidelity and Casualty Company of New York, a corporation, as surety, damages for the alleged breach of an official bond executed by the defendants payable to the City of Mullens in the penalty of Thirty Five Hundred Dollars. The defendant Davidson, the principal in the bond, did not appear or defend the action in the trial court. The defendant, Fidelity and Casualty Company of New York, filed its written demurrer to the declaration and assigned numerous grounds of demurrer. The circuit court dismissed the State of West Virginia as a party, sustained the demurrer to the declaration as to the defendant Fidelity and Casualty Company of New York, and dismissed the action as to it. To that judgment this writ of error was granted upon the petition of the plaintiffs.

The declaration, which consists of a single count, alleges the appointment of Davidson as a police officer of the City of Mullens on May 23, 1946, for an indefinite term, the execution by the defendants, on June 25, 1946, of a bond payable to the City of Mullens in the penalty of Thirty Five Hundred Dollars conditioned that Davidson should 'faithfully perform such duties as may be imposed on him by law or by the Commissioners of said city during the said term of office', and that he did not perform, but defaulted in, the condition of the bond. It charges that Devidson, on March 2, 1948, which the bond was in force and effect, and while he was engaged in the discharge of the duty, imposed upon him as such officer by the City of Mullens, of inspecting parking meters maintained and operated in and by the city, under color of his office, came to the entrance of the Mullens Appliance Store, in the rear portion of which the relator was then engaged in selling goods to a customer, and, in a loud voice and in the presence and the hearing of divers citizens, maliciously, falsely and insultingly uttered and spoke these words: 'What do you (meaning the said relator) mean breaking this parking meter (pointing to and meaning an automobile parking meter owned and operated by the City of Mullens, West Virginia as aforesaid and situated on the street curb immediately in front of, and across the street from, said Mullens Appliance Store in said City of Mullens). You put a crooked penny (from its usual construction and common acceptation, meaning a 'slug' or other article capable of being issued, uttered and passed as an unlawful and illegal substitute for legal tender of the United States) in it (meaning thereby to charge relator with knowingly violating statutes of the United States making it unlawful to utter or pass counterfeits or other unlawful substitutes for legal tender of the United States) and broke it (meaning thereby to charge relator with the violation of an ordinance of the City of Mullens aforesaid as well as the violation of statutes of the State of West Virginia relating to the damaging of property of others). These meters cost the city (meaning the City of Mullens, West Virginia) $58.00.'

The declaration also charges that the foregoing words were insults, were construed as such by Davidson and the persons who heard them, and were such as tend to violence and breach of the peace; that the act of Davidson, in uttering them, injured and damaged the relator in his good name, fame and credit in the amount of Thirty Five Hundred Dollars; and that the foregoing act of Davidson constituted a breach of the condition of the bond.

In addition to the dismissal of the State of West Virginia as a party to this action, the circuit court, according to the opinion filed as part of the record, sustained the demurrer and dismissed this case as to the defendant, Fidelity and Casualty Company of New York, the surety, on the ground that the condition of the bond did not cover slander and, in consequence, the surety was not liable for the slanderous and insulting remarks of Davidson, the principal in the bond. This ruling of the court is assigned as error by the plaintiffs.

In support of the judgment of dismissal the surety contends: (1) The words uttered by the principal, Davidson, are not slanderous at common law or within the meaning of the statute; (2) the occasion of the utterance of the words in question was absolutely privileged; and (3) the bond does not cover the words uttered by the defendant Davidson.

Consideration should first be given to the ruling of the trial court in dismissing the State of West Virginia as a plaintiff in this action. The bond here in suit is an official bond of the defendant Davidson as a police officer of the municipality. Code, 1931, 6-2-2, provides that every official bond, and every bond required by law to be taken or approved by, or given before, any court, board or officer, shall, unless otherwise provided, be made payable to the State of West Virginia. A former statute, Section 5, Chapter 10, Code of 1913, which subsequently became Section 5, Chapter 10, Code of 1923, contained a provision that any bond to be given by an officer of a municipal corporation, county or district, or that could lawfully be prescribed by its ordinances, by-laws or regulations, could be made payable to the State of West Virginia or to the municipal corporation, the county, or the district.

In State ex rel. County Court of Preston County v. Williams, 115 W.Va. 204, 174 S.E. 873, this Court held that an action upon the official bond of a sheriff, payable to the county and given when the statute just referred to was in force and effect, could not be maintained in the name of the State. In State ex rel. McDermott v. United States Fidelity and Guaranty Company, 85 W.Va. 720, 120 S.E. 683, the holding, with respect to a bond also executed while Section 5, Chapter 10, Code of 1913, was in force and effect, by a municipal police officer for carrying weapons, conditioned as prescribed by a statutory provision which is now incorporated in Section 2, Article 7, Chapter 61, of the Code of 1931, was that an action on such bond, payable to the municipality, could not be brought in the name of the State, but must be brought in the name of the municipality. Section 5, Chapter 10, Code of 1923, however, was omitted from the Code of 1931, and is not now in force in this State. Code, 1931, 6-2-11, relates to bonds of municipal officers, but that section does not expressly provide how or to whom such bonds shall be payable. The Revisers' Note to Code, 1931, 6-2-2, states that the purpose in requiring all bonds referred to in the section to be made payable to the State and in dispensing with the alternate provisions of Section 5, Chapter 10, Code of 1923, was to provide uniformity for all such bonds.

Though the bond here in suit does not comply with the foregoing requirement of Code, 1931, 6-2-2, it is not invalid for that reason. See Municipality of Cowen ex rel. Proudfoot v. Greathouse, W.Va., 45 S.E.2d 489. In that case this Court held that an action by the municipality could be maintained upon a written obligation entered into as a statutory bond which did not bear a seal, but which possessed all the essential elements of a binding contract. As the bond in this case was expressly made payable to the City of Mullens, as obligee, this action may be maintained in its name. See State ex rel. McDermott v. United States Fidelity and Guaranty Company, 85 W.Va. 720, 102 S.E. 683; Town of Lester v. Trail, 85 W.Va. 386, 101 S.E. 732. In an action in the name of the State upon an official bond payable to the State of West Virginia, it sues in a representative capacity as trustee and as the obligee for the use of any and all persons who might be injuriously affected by the breach of the bond; and as the bond in this case is not payable to the State but to the City of Mullens, no constractual relation exists between the State and...