Hatfield v. Wyatt

• Decision Date: 15 September 1925
• Docket Number: (C. C. No. 354)
• Citation: 99 W.Va. 604
• Parties: W. J. Hatfield, Sheriff, ex rel. Albert Justice v. S. D.Wyatt and J. W. Blakely, Agent.
• Court: West Virginia Supreme Court

99 W.Va. 604

W. J. Hatfield, Sheriff, ex rel. Albert Justice

v.S. D. Wyatt and J. W. Blakely, Agent.

(C. C. No. 354)

Supreme Court of Appeals of West Virginia.

Submitted September 2, 1925.

Decided September 15, 1925.

Taxation Suit on Bond by Tax Collecting Deputy to Sheriff May be Maintained in Name of Sheriff at Relation of Any One Injured by Deputy by Unlawful or Careless Use of Pistol or Revolver.

By virtue of Section 7 of Chapter 148 of the Code, a bond executed by a tax collecting deputy to a sheriff is, quo ad his liability for a breach of the superadded conditions imposed by the statute an official bond, and though made payable to the sheriff suit thereon in the name of the sheriff at the relation of anyone injured by such deputy by his unlawful or careless use of a pistol or revolver, may be maintained against such deputy and the surety on said bond, for the damages 'for the personal injuries so inflicted.

Case Certified from Circuit Court, McDowell County.

Action by W. J. Hatfield, Sheriff, on the relation of Albert Justice, against S. D. Wyatt and another, on a bond to recover for personal injuries. After sustaining defendant's demurrer to the declaration, the court certified its rulings.

Ruling reversed.

Froe, Capehart and Miller, for plaintiff.

Harman & Howard and Jos. M. Crockett, for defendants.

Miller, Judge:

This action was brought at the relation of Justice against Wyatt and Blakely, the latter as Wyatt's surety upon a bond voluntarily given by him as a tax collecting deputy for Hatfield, Sheriff, to cover damages alleged to have been sustained by Justice on account of personal injuries inflicted upon him by Wyatt, by unlawfully, wilfully and maliciously shooting him with a pistol or revolver then being carried by him while acting as such deputy, without any just or legal excuse therefor.

The circuit court sustained the defendants' demurrer to the declaration and to each of the three counts thereof, and certified the correctness of its rulings to us for our judgment thereon.

The only expressed condition of the bond sued on is that "if the said S. D. Wyatt shall faithfully discharge the duties of said office and account for and pay over as required by law, all monies which may come into his hands by virtue of said office, and shall act in a lawful manner while acting as such Deputy Sheriff in official matters, then shall this obligation be void; otherwise shall remain in full force and effect.':

But it is averred that by reason of the premises, section 7, chapter 148 of the Code, ex proprio vigore became and was an added condition to said bond, though unexpressed therein; that the said S. D. Wyatt and J. W. Blakely, agent, should be, were and are liable on their official bond, executed as aforesaid for damages done by the said S. D. Wyatt by the unlawful or careless use of any pistol, revolver or other weapon designated in said section of the statute, while and so long as he served as such deputy sheriff and the said bond remained in force and virtue.

The breach of the bond and of the added condition alleged to have been written therein by the statute is fully alleged in each count of the declaration.

Said section 7 of chapter 148 of the Code prohibits the carrying about his person of any of the weapons enumerated by any person without a state license therefor obtained in the manner prescribed, and renders the offender guilty of a misdemeanor and liable to fine and imprisonment, and for the second offense guilty of a felony punishable by imprisonment in the penitentiary. And the statute requires of the applicant a bond with sureties, "conditioned that such applicant will not carry such weapon except in accordance with his said application and as authorized by the court, and that he will pay all costs and damages accruing to any one by the accidental discharge or improper, negligent or illegal discharge or use of said pistol."

The last proviso of said section relied on by the relator and as furnishing the basis of the present action is as follows: "Provided, further, that nothing herein shall be so construed as to prohibit regularly elected sheriffs, their regularly appointed deputies, who collect taxes in each county, and all regularly elected constables in their respective counties and districts, and all regularly appointed police officers of their respective cities, towns or villages, from carrying such weapons as they are now authorized by law to carry, who shall have given bond in the penalty of not less than thirtyfive hundred dollars, conditioned for the faithful performance of their respective duties, which said officers shall be liable upon their said official bond, for the damages done by the unlawful or careless use of any such weapon, whether such bond is so conditioned or not."

The grounds of demurrer are that, as the bond sued on is made payable to W. J. Hatfield, Sheriff of McDowell County, and not to the State of West Virginia, no action thereon lies at the suit of the relator, such...