Holland v. Fidelity & Deposit Co. of Maryland

• Citation: 225 Ala. 669,145 So. 131
• Decision Date: 22 December 1932
• Docket Number: 4 Div. 681.
• Court: Supreme Court of Alabama
• Parties: HOLLAND v. FIDELITY & DEPOSIT CO. OF MARYLAND ET AL.

145 So. 131

225 Ala. 669

HOLLAND v. FIDELITY & DEPOSIT CO. OF MARYLAND ET AL.

4 Div. 681.

Supreme Court of Alabama

December 22, 1932

Appeal from Circuit Court, Geneva County; E. S. Thigpen, Judge.

Action of trespass by Charlie Holland against Grover C. Hughes and the Fidelity & Deposit Company of Maryland. From a judgment of nonsuit, plaintiff appeals.

Reversed and remanded.

The complaint is as follows:

"Plaintiff claims of defendants five thousand ($5,000.00) dollars, as damages, for that whereas, at the time of the matter and things herein complained of, the defendant Grover C. Hughes was sheriff of Geneva County, Alabama, and the Fidelity &amp Deposit Company of Maryland, a corporation, was surety on his bond, in the sum of $5,000.00 and T. H. Peel and John C. Hughes, were then and there the duly appointed and acting Deputy Sheriffs of Geneva County, Alabama, under the said Grover C. Hughes, and the said Tom H. Peel and John C Hughes then and there acting under color of their office as such Deputy Sheriff, and in the line and scope of their authority as such deputy Sheriffs, did on to-wit: the night of December 4th, 1930, shoot and severely wound plaintiff by shooting him with a pistol, and by reason thereof, the plaintiff was forced to remain in a hospital for several weeks, and was caused great physical and mental pain and anguish, and incur Hospital, Doctor and Medical Bills, and plaintiff avers that by reason of the injuries so inflicted, he was permanently injured, and for a long period of time was unable to do, or perform, any work or labor, and that all of said injuries and damages was caused by the said T. H. Peel and John C. Hughes, as herein alleged, all to his damages $5,000.00, wherefore he sues."

O. S. Lewis, of Dothan, and R. S. Ward, of Hartford, for appellant.

Mulkey & Mulkey, of Geneva, for appellees.

FOSTER J.

This is an action against the sheriff and the surety on his official bond for damages caused by a trespass upon the person of plaintiff committed by two alleged deputy sheriffs under color of their office as such and in the line and scope of their authority. The trespass is alleged to have been that they shot plaintiff with a pistol, causing the personal injuries and damages sued for.

The pleas were the general issue and statute of limitations of one year. The trespass is alleged to have been committed more than one year before the suit was commenced.

The court overruled the demurrer to the plea of the statute of limitations. This appeal is by plaintiff to test that ruling, having been thereby caused to take a nonsuit for that purpose.

The complaint is not in assumpsit for a breach of the obligations of the bond. It is in form a tort action. This court has often affirmed that such form of action is available under such circumstances, though the surety on the bond is jointly sued, and is liable by virtue of its contract. Hill v. Hyde, 219 Ala. 155, 121 So. 510; National Surety Co. v Plemmons, 214 Ala. 596, 108 So. 514; Deason v. Gray, 192 Ala. 611, 69 So. 15. Under our recent decisions, punitive damages may not be recovered. Hain v. Gaddy, 219 Ala. 363, 122 So. 329; Phillips v. Morrow, 210 Ala. 34, 97 So. 130. The substance of the allegation, and not its form, determines the character of a complaint. Code, §§ 9457, 9512.

Case is barred in one year, Code, § 8949; trespass in six, Code, § 8944.

The inquiry presented therefore is whether the action is in case or trespass. The rule is that, when an agent commits a trespass when acting in the line and scope of his authority, but not authorized by the principal to commit the trespass, the agent is liable in an action of trespass and the principal in case, but that a joint action against them is not available. City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389; Louisville & N. R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103; Ex parte Louisville & N. R. Co., 203 Ala. 328, 83 So. 52.

This rule would control in the instant case if the liability of the sheriff for the acts of the deputies were dependent upon the ordinary principles pertaining to principal and agent or master and servant on the doctrine of respondeat superior. So the question is whether they apply in respect to a sheriff and his deputies,...