Dunn v. Swanson

• Decision Date: 20 March 1940
• Docket Number: 165.
• Citation: 7 S.E.2d 563,217 N.C. 279
• Parties: DUNN v. SWANSON, Sheriff, et al.
• Court: North Carolina Supreme Court

7 S.E.2d 563

217 N.C. 279

DUNN v. SWANSON, Sheriff, et al.

No. 165.

Supreme Court of North Carolina

March 20, 1940

J P. & J. H. Zollicoffer, of Henderson, for defendant appellant National Surety Corporation.

D P. McDuffee, of Henderson, Yarborough & Yarborough, of Louisburg, and Allsbrook & Benton, of Roanoke Rapids, for plaintiff, appellee.

SEAWELL Justice.

The plaintiff, Mrs. Kate Dunn, administratrix of the estate of Leonard Dunn, brought this action to recover for the injury and death of her husband, which she alleges was brought about by the negligent acts of the defendants Ellis, Jailer, and Swanson, Sheriff of Vance County, and for which she claims the National Surety Corporation is liable on the sheriff's bond.

The plaintiff complains that sometime in June, 1939, her intestate was in a weak, sick, and helpless condition; that the defendant Ellis, Jailer, acting in his official capacity and under color of his office and for his superior, Swanson Sheriff, received the intestate from certain police officers in the City of Henderson, and while he was in such helpless condition incarcerated him in the common jail of the county and carelessly and negligently cast him into a cell with a violently insane man, one Pusey Thorne, locked the door to the cell, and abandoned him. The plaintiff further sets out that both Ellis and Swanson were aware of the fact that Pusey Thorne was violently insane and was at the time confined to prevent him doing injury to others; that during the night plaintiff's intestate, while in a helpless condition, was violently and murderously assaulted by the said insane person, and terribly beaten from head to foot with a table leg torn from a table which had been left in the cell by Swanson and Ellis; that the intestate lay in his cell "in his own blood, without care or attention, since the time when he was assaulted and beaten", and that in consequence of the assault he died that morning, without having recovered consciousness.

The plaintiff further sets up that the defendant National Surety Corporation was a surety on the bond of the sheriff and, therefore, with the sheriff, is liable on the said surety bond to answer in damages for the injury and death of intestate.

To this complaint the defendants demurred. The demurrer was overruled and defendants appealed. The defendant National Surety Corporation is prosecuting its appeal in this Court.

This case is controlled by C.S. § 354; Warren v. Boyd, 120 N.C. 56, 57, 26 S.E. 700; Kivett v. Young, 106 N.C. 567, 10 S.E. 1019; and Price v. Honeycutt, 216 N.C. 270, 4 S.E.2d 611.

It is true that there is a factual difference between the case at bar and Price v. Honeycutt, supra. In the latter case the conduct for which the sheriff was called to account was a wilful assault; in the case at bar the conduct of the jailer imputed to the sheriff, is charged to be merely negligent. But the difference is not fruitful in raising a distinction in legal effect. The statute as interpreted by the decisions, Kivett v. Young, supra, Warren v. Boyd, supra, covers negligence by the officer as well as wilful acts. Kivett v. Young, supra, applied the statute in the case of...