King v. Kelly, 42129

• Decision Date: 19 February 1962
• Docket Number: No. 42129,42129
• Citation: 243 Miss. 160,137 So.2d 808
• Court: Mississippi Supreme Court
• Parties: Lawrence KING and U. S. F. & G. Company v. Jeffery Lee KELLY, a Minor, by Miss Willie Thompson, Next Friend.

Page 808

137 So.2d 808

243 Miss. 160

Lawrence KING and U. S. F. & G. Company v. Jeffery Lee KELLY, a Minor, by Miss Willie Thompson, Next Friend.

No. 42129.

Supreme Court of Mississippi.

Feb. 19, 1962.

J. P. Coleman, Ackerman, Snow, Covington & Shows, Meridian, for appellants.

Forrest B. Jackson, Jackson, Bradford J. Dye, Grenada, William Liston, Winona, for appellees.

JONES, Justice.

A jury in the Circuit Court of Montgomery County rendered a verdict in favor of appellee in the amount of $9,000. The appellant and the surety on his bond appealed and the appellee cross-appealed, there being three separate assignments of error.

The bonding company says it should have been given a peremptory instruction.

The appellant King complains that the venue should have been changed.

The appellee asserts that the verdict was totally inadequate and that he should have been granted a new trial on the question of damages alone.

The facts as shown by the proof for plaintiff were that on the occasion in question the appellant King was the Sheriff of Montgomery County, Mississippi. William Lee Kelly was his deputy. One witness testified that he was employed by King to kill Kelly, the reason being that, as the witness expressed it, King was 'sweet-hearting' with the wife of Kelly. This witness was the one that with the assistance of another went into the office of the sheriff on the night of January 2, 1960, where Kelly was working and beat him to death with a hammer. This witness testified that the sheriff had offered him money and had also threatened him with a fake prosecution. Furthermore, he stated the sheriff had loaned him a key with which to enter the office.

The sheriff was indicted for murder and the venue was changed to Lauderdale County. In the first trial there was a hung jury. Thereafter and in September, 1960, appellant King entered a plea of guilty and was sentenced to life in the penitentiary.

In this case, King denied the evidence of the State's witness and while he admited the plea of guilty in the criminal case, he undertook to explain it on the ground that, on advice of counsel and others, he was seeking to avoid the death penalty, but at the same time protesting his innocence.

I.

United States Fidelity and Guaranty Company contends that the evidence should have been excluded as against it and a peremptory instruction entered for the reason that the evidence failed to show that any act done by the sheriff was an official act or was done by virtue of or under color of office, or in the performance of any official duty.

Appellee admits the general rule to be that the official bond of a sheriff or other law enforcement officer imposes liability only for what the officer unlawfully does or omits to do in the execution of his office, or of some official duty imposed upon him by law. Appellee admits that the bond does not cover any omission or act done without authority of law, or in his private or personal capacity as a man or a citizen. But says that the action of the sheriff here was under color of office, and seems to rely upon the case of Maryland Casualty Company v. Eaves, 188 Miss. 872, 196 So. 513. In that case the officer was a constable and the testimony showed that he was making an arrest, and after telling the plaintiff he was under arrest, struck him over the eye with a pistol. We think that case is distinguishable from the present case.

In State, etc. v. Lightcap, et al., 181 Miss. 893, 179 So. 880, suit was filed against the sheriff for acts of his deputy, Pigg. The evidence showed that Pigg and two other deputies had gone to Eden in Yazoo County to preserve the peace, complaint having been made of rowdyism there on Saturday night. While there, Pigg entered a store and pulled his pistol and ordered one Johnson, who was doing nothing except being present, to march out in front of him. Johnson accompanied him to an unused filling station. What occurred there between them does not appear. Appellant was informed that Pigg had Johnson under arrest and Johnson desired him to go his bond or do what might be necessary. The appellant went to the filling station and when he arrived there he testified that Johnson told him Mr. Pigg had him and he, Johnson, wanted Dew to pay his fine or whatever it was. Dew asked Pigg if he had him arrested and Pigg said, 'No, I want to talk to him.' Pigg asked Dew to leave and Dew asked him why he could not hear him talk to the Negro. He said Pigg then backed off eight or ten feet and said, 'Well, come over here and I will talk to you,' and then began to shoot, and shot at Dew five times. Dew was unarmed and says he neither threatened to make nor made any attack on Pigg. This Court held that there was no liability on the part of the sheriff because Pigg was not acting under color of his office, saying:

'Pigg had no warrant for the arrest of Johnson, and no circumstances appear that would permit his arrest without a warrant, under section 1227, Code of 1930. These facts alone are not conclusive, but are circumstances to be taken into consideration. Section 1227 requires a person, when making an arrest without a warrant, to 'inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.' Pigg said nothing indicating that he had arrested Johnson, or intended so to do. On the contrary, when asked by Dew if he had Johnson under arrest, he said, 'No, I haven't got him arrested,' and there is no evidence that the contrary is the fact. Moreover, when Pigg informed that appellant, in Johnson's presence, that he did not have Johnson under arrest, he lost any immunity he might theretofore have had, and, since it does not appear that the statement was false, he must be held for all purposes not to have acted thereafter under color of his office.'

Taggart et al. v. Peterson, 182 Miss. 82, 181 So. 137, was a suit against the chief of police and his bondsmen. Judgment was rendered for plaintiff but in this Court the judgment was reversed and rendered insofar as the bonding company was concerned. It seems that Peterson and his employee, Willingham, on a Sunday morning on the Streets of Greenville, were engaged in conversation when Taggart arrested Willingham for improperly parking his automobile. Peterson protested and some conversation occurred between him and Taggart. Taggart notified Peterson that he would be arrested for interfering with an officer in the discharge of his official duty, using violent and profane language. Taggart did not then take either party into custody, but went to headquarters and had charged preferred against them. In the meantime, Peterson had entered a cafe and while seated on a stool, Taggart entered, asking Peterson what he had against him. Peterson replied he had nothing against him and thereupon Taggart struck Peterson, knocking him off the stool and breaking his glasses, while using profane language. His bonding company requested a peremptory instruction (which was refused) on the ground that Taggart was not acting in an official capacity at the time of the assault and that a surety was not liable for the personal acts of an officer. This Court, in reversing and rendering insofar as the bonding company was concerned, said:

'The rule is well settled in this state that sureties on official bonds are not liable for personal torts of officers. In Lizana et al. v. State, Use of Kelly, 109 Miss. 464, 69 So. 292, it was held that, in the absence of a statute, the sureties on official bonds are not liable for exemplary damages. In Pierce v. Chapman, 165 Miss. 749, 143 So. 845, it was held that an officer acting under color of his office is liable for wrongs committed. The court, in this case, quoted from 22 R.C.L. p. 506, Sec. 190, as follows (page 846): 'In a considerable number of cases, the courts have been called on to decide whether a particular act constituted a wrong or misconduct within the terms of an official bond. Broadly speaking an official bond covers torts committed by the officer under color of his official right. But where an individual is injured by the private and personal acts of an officer, and not by acts which he has done either by virtue of his office or under color of his office, his sureties are not liable. For example, if a public officer having no process in his hands does an act which he has no right to do, he is not considered as acting officially and therefore the sureties on his official bond are not answerable for his conduct. But if having a valid process he commits a trespass in seizing property not subject to the process, those injured by his acts may proceed against him and the sureties on his official bond. * * * In the books there are to be found much refinement and quibbling in behalf of sureties on official bonds, as to whether the act of the officer was done colore officii, or virtue officii. * * * The intricacies of this discussion are satisfactorily avoided by those courts which in accordance with the weight of authority hold that sureties are liable for the acts of an official performed under color of his office as well as for those done by virtue of his office.

'In the case at bar, it is true that the assault would, in all probability, not have occurred if the conversations had not taken place at the time of the arrest. There was no arrest made then, and the interval between the arrest and the assault is not a part of res gestae. We think, therefore, that there was no liability on the part of the United States Fidelity & Guaranty Company, and that its request for a peremptory instruction should have been granted.'

In the instant case, it appears from the plaintiff's proof that Sheriff King desired to be rid of his deputy Kelly because he, King, was 'sweethearting' with Kelly's wife. We could imagine nothing more personal than this. The lower court erred in refusing to sustain the bonding company's motion.

II....