Fidelity & Casualty Co. of New York v. Maddox

• Decision Date: 14 January 1936
• Citation: 262 Ky. 109,89 S.W.2d 863
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. MADDOX.
• Court: Kentucky Court of Appeals

89 S.W.2d 863

262 Ky. 109

FIDELITY & CASUALTY CO. OF NEW YORK v. MADDOX.

Court of Appeals of Kentucky

January 14, 1936

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by Hugh Maddox against Edward L. Carrithers and the Fidelity & Casualty Company of New York. Judgment for plaintiff, and the Fidelity & Casualty Company of New York appeals.

Judgment reversed, and cause remanded, with directions.

L. R Curtis, of Louisville, for appellant.

S. J Stallings, of Louisville, and Funk & Porter, of Shepherdsville, for appellee.

RATLIFF Justice.

Appellant became surety upon the official bond of Edward L. Carrithers as a county patrolman. On the night of September 8, 1934 Carrithers shot Hugh Maddox, appellee, through the foot with a pistol, and Maddox brought this suit against Carrithers and appellant as surety on his official bond to recover for the injury thus sustained. The trial resulted in a verdict and judgment thereon in favor of Maddox for $710, and the surety company appeals.

The sole ground relied upon for a reversal of the judgment is that the evidence shows conclusively that at the time Carrithers shot Maddox, he, Carrithers, was not acting in an official capacity, but it was a personal act of his, and his surety is not liable for the result of such act, and therefore the court should have sustained its motion for a directed verdict.

There is no material conflict in the evidence. It is agreed and the evidence so shows that Maddox had committed no offense either in or out of the presence of the officer, and there was no warrant for his arrest, nor any reason for his being arrested, and that Carrithers was not undertaking to arrest Maddox or any other person, nor undertaking to deputize him to assist him in any official duty. The action is based upon the negligent use of the pistol by Carrithers, in the following language: "The defendant, Edward L. Carrithers, while acting in his official capacity as a county patrolman by virtue of his said office, handled a pistol which was in his possession for the pursuance of his duties, in such a careless and negligent manner, etc. * * *"

Under the bond, the surety covenants that the principal "shall well and properly discharge all of the duties of his office as required by law." The question to be determined is whether or not Carrithers was engaged in an official act or discharge of a duty required by law.

Maddox testified that he was in a tavern near Louisville, Ky. and Carrithers came in and invited him to ride around with him for company and Maddox told him he could not go and Carrithers caught him by the ear and said, "Well, if you don't go I will shoot you in the foot," and when Maddox again declined to go, Carrithers pulled his pistol and shot him in the foot. Carrithers testified that when he asked Maddox to go with him, he, Maddox, started kidding him about thinking he was chief of police because he was carrying a larger caliber gun than usual, and when he went to pull the gun out of the holster to show it to Maddox, it was fired accidentally. He said he did not have to pull the gun out at all and there was no reason for him to do so except to show it to Maddox. However, he denies making any threat to shoot Maddox, and this is the only conflict in their testimony.

In Taylor v. Shields, 183 Ky. 669, 210 S.W. 168, 169, 3 A.L.R. 1619, it was alleged and shown by the proof that the arrest of Taylor was without warrant or other authority of law, because at the time of the arrest Taylor was acting in a quiet peaceful and law-abiding manner, had committed no breach of the peace or any other offense in or out of the presence of the officers, and the officers had no reasonable grounds to believe Taylor had committed either a misdemeanor or a felony. The circuit court held that under the proof no case was made out against the surety, and in affirming the judgment this court said: "If these allegations be true, and upon demurrer they are so considered, then the acts of the policemen were their individual acts and not their official acts, or...