Langley v. Patrick
| Decision Date | 23 September 1953 |
| Docket Number | No. 25,25 |
| Citation | 77 S.E.2d 656,238 N.C. 250 |
| Court | North Carolina Supreme Court |
| Parties | LANGLEY, v. PATRICK et al. |
LeRoy Scott and John A. Wilkinson, Washington, for plaintiff, appellant.
Rodman & Rodman, Washington, for American Surety Corp., appellee.
The plaintiff concedes in this Court that the judgment as of nonsuit was properly entered as to the Beaufort County ABC Board. He insists, however, that the trial court erred in dismissing the case as to the defendant National Surety Corporation.
Thus, the appeal presents this single question: Does the indemnity contract in suit cover liability for the alleged assault and battery committed by enforcement officer Patrick? The record impels a negative answer.
By the terms of the contract the Surety Corporation agrees 'to indemnify Beaufort County Alcoholic Beverage Control Board * * * against any loss of money or other personal property, belonging to the Insured or for which the Insured is legally liable, caused by larceny, embezzlement, * * * or any other fraudulent or dishonest act or acts' of the defendant Patrick.
The contract is not conditioned 'for the faithful [performance]' of the duties of enforcement officer Patrick as a peace officer as required by G.S. § 128-9. In fact, the instrument is not executed by Patrick or any of the covered employees of the Board. At most the contract is one of indemnity, in the nature of a fidelity bond, and in no sense does it purport to be a peace officer's performance bond as required by G.S. § 128-9. Accordingly, the terms of that statute, requiring peace officers to give bond for the faithful performance of their duties as such, may not be treated as being incorporated in the instant contract on the theory that the statute was within the contemplation of the parties and that they intended to include the conditions thereof in the contract. The doctrine of aider by statute, recognized in Dunn v. Swanson, 217 N.C. 279, 7 S.E.2d 563, and Price v. Honeycutt, 216 N.C. 270, 4 S.E.2d 611, does not cover the factual situation here presented. See also 43 Am. Jur., Public Officers, Sec. 406; Annotation 109 A.L.R. 501. The cases from other jurisdictions relied on by the appellant, including Holland v. American Surety Company, 149 Fla. 285, 6 So.2d 280, 140 A.L.R. 1451, are factually distinguishable, and are not considered as controlling here.
The judgment as of nonsuit below is sustained under authority of Midgett v. Nelson, 214 N.C. 396, ...
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State v. Mobley
...requiring that the minimum bond of $1,000 now required of peace officers by G.S. § 128-9 be substantially increased. See Langley v. Patrick, 238 N.C. 250, 77 S.E.2d 656. For constructive criticisms of the present law of arrest see Machen, The Law of Arrest, p. 76 et seq.; 15 N.C.Law Review,......
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Langley v. Taylor
...for defendant-appellees. WINBORNE, Chief Justice. In the light of the concessions made by plaintiff on the former appeal, 238 N.C. 250, 77 S.E.2d 656, it would seem that if thepresent action be considered an action against the Alcoholic Beverage Control Board of Beaufort County it may not b......