Deason v. Gray

• Decision Date: 03 June 1915
• Docket Number: 67
• Citation: 192 Ala. 611,69 So. 15
• Parties: DEASON v. GRAY et al.
• Court: Alabama Supreme Court

69 So. 15

192 Ala. 611

DEASON v. GRAY et al.

No. 67

Supreme Court of Alabama

June 3, 1915

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by S.G. Deason against John M. Gray and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

F.A Gamble, of Jasper, for appellant.

Ray &amp Cooner, of Jasper, for appellees.

THOMAS J.

The gravamen of the action is the arrest and false imprisonment of the appellant by John M. Gray, acting in his official capacity as sheriff of Walker county. Each count of the complaint alleges that the United States Fidelity & Guaranty Company is surety on the official bond of said John M. Gray as such sheriff of Walker county, Ala., and each count alleges that the arrest was made either by the sheriff or by a named deputy of the sheriff, without probable cause and without a warrant therefor, on the charge of using abusive language.

On the former appeal the ruling of the lower court was reversed for sustaining demurrers to counts 1 and 3. On the retrial of said cause, the plaintiff withdrew all counts, except counts 1 and 3, and embodied an additional count, numbered 11. Defendant refiled his demurrer to counts 1, 3, and 11, which demurrer was sustained by the court; and the plaintiff took a nonsuit, and a bill of exceptions, on account of the court's action in sustaining the demurrer.

Counts 1 and 3 were held sufficient in Deason v. Gray, 66 So. 646, where Mr. Justice Mayfield said:

"Each count stated a cause of action *** for false imprisonment, against both the sheriff and his official bondsmen. It was not necessary to set out the bond, nor any of its conditions. The statutes prescribe these; and if the official bond was not such as the statutes prescribe, or if the defendant was not really surety on the sheriff's bond, this was matter for special plea. The action was against the sheriff and the Guaranty Company, and it was alleged in each count that the Guaranty Company was surety on the official bond of the sheriff. The law says what the conditions are, and for what acts or faults or derelictions of the sheriff the surety on his official bond shall be liable. Hence these were questions of law, and not of fact, and were not necessary to be alleged."

In Coleman et al. v. Roberts, 113 Ala. 323, 21 So. 449, 36 L.R.A. 84, 59 Am.St.Rep. 111, Chief Justice Brickell quoted from the opinion in Kelly v. Moore, 51 Ala. 364, with approval, that to cure--

"a defect in the common law *** the statute now extends the liability of sureties on official bonds to injuries from wrongful acts done by the officer under color of his office, as well as to the nonperformance, or negligent performance, of official duty. The complaint avers the wrong, as we have stated, the official character of McGovern, and the execution of an official bond, with the other defendants as sureties. However inartificial these averments may be, they must, after judgment by default, be deemed to disclose a substantial cause of action against all the defendants jointly," adding that, "Whether the construction of the complaint was or was not erroneous is not now of importance."

In Smith v. Roebuck et al., 155 Ala. 395, 46 So. 455, it was declared that, in an action against a justice of the peace and the sureties on his official bond, the complaint states a cause of action where it alleges that the defendant, while acting under color of his office as such justice of the peace, unlawfully deprived the plaintiff of his liberty, causing him to be arrested and imprisoned, and that as a consequence thereof the plaintiff suffered, etc.

The statute declaring the legal effect of official bonds is as follows:

"1. For every breach of the condition during the time the officer continues in office, or discharges any of the duties thereof.

"2. For the faithful discharge of any duties which may be required of such officer by any law passed subsequently to the execution of such bond, although no such condition is expressed therein.

"3. For the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office as by his failure to perform, or the improper or neglectful performance of those duties imposed by law."

Code, 1907, § 1500.

The appellant insists by demurrer that neither of the three counts declares on the bond for a breach thereof, and that under the statement of the law in Murphy v. McAdory et al., 183 Ala. 209, 62 So. 706, no recovery could be had against the sureties. But Murphy v. McAdory was a radically different case. An inspection of the original record shows that counts 1 and 3 claimed damages of the defendant: (1) For maliciously and without probable cause therefor imprisoning the plaintiff on a charge of assault with intent to murder and (2) for an assault and battery...