Hain v. Gaddy

• Decision Date: 11 April 1929
• Docket Number: 2 Div. 938.
• Citation: 122 So. 329,219 Ala. 363
• Parties: HAIN v. GADDY ET AL.
• Court: Alabama Supreme Court

122 So. 329

219 Ala. 363

HAIN v. GADDY ET AL.

2 Div. 938.

Supreme Court of Alabama

April 11, 1929

Rehearing Denied May 23, 1929.

Appeal from Circuit Court, Dallas County; Thomas E. Knight, Judge.

Action for wrongful death by J. B. Hain, as executor of the will of W. E. Moore, deceased, against J. E. Gaddy and the United States Fidelity & Guaranty Company. Plaintiff takes a nonsuit and appeals from adverse rulings on pleading sustaining a demurrer to the complaint.

Hobbs Craig & Brown, of Selma, for appellant.

Arthur M. Pitts, of Selma, and B. F. Smith, of Birmingham, for appellees.

ANDERSON C.J.

This is an action by the personal representative of W. E. Moore deceased, against the defendant Gaddy and his official bond for the death of Moore at the hand of said Gaddy while sheriff, and is based upon the Homicide Act, now section 5696 of the Code of 1923, and the sole question involved is whether or not the damage thereby provided is recoverable on the sheriff's official bond.

This court has uniformly held that section 5696 is penal in its nature and provides only for punitive as distinguished from compensatory damages, and the trial court in sustaining the demurrer of the bond company to the complaint followed the holding of this court in the case of Phillips v Morrow, 210 Ala. 34, 97 So. 130, and which is in point in principle, if not identical in fact. True, this case nor the ones there cited deal with the homicide statute, but they do hold that official bonds as defined by the statute are intended to cover compensatory damages only, and not penalties or punitive damages. As the only damages provided by section 5696 are punitive and not compensatory, the same are not covered by the bond in question.

This court also dealt with subdivision 3 of section 1500 of the Code of 1907, section 2612 of the Code of 1923, and held, in line with former decisions, that this provision did not have the effect of making official bonds liable for penalties or punitive damages. This question is not only settled in this state, but the result is supported by the great weight of authorities. 17 C.J. p. 988, § 287. While the Morrow Case supra, was modified or overruled in part, on the second appeal it was not disturbed on the point here involved.

Counsel for the appellant, with zeal and considerable force, argue against the result of the present holding, insisting that it affords a greater protection to...