Marable v. State ex rel. Wackernie

• Decision Date: 26 March 1949
• Citation: 222 S.W.2d 234,32 Tenn.App. 238
• Parties: MARABLE et al. v. STATE ex rel. WACKERNIE.
• Court: Tennessee Court of Appeals

222 S.W.2d 234

32 Tenn.App. 238

MARABLE et al. v. STATE ex rel. WACKERNIE.

Court of Appeals of Tennessee, Middle Section.

March 26, 1949

Certiorari Denied by Supreme Court July 9, 1949.

Appeal in Error from Circuit Court, Davidson County; John M. Cate Special Judge.

Suit by the State, on the relation of Henry Charles Wackernie against Jim Marable, Constable of Davidson County, Tennessee and the Fidelity & Casualty Company of New York, surety on bonds of Jim Marable as Constable, to recover damages for the alleged wrongful killing of Robert Marcel Wackernie. Judgment for plaintiff and defendants appeal in error.

Affirmed.

H. T. Finley, Nashville, Homer B. Weimar, Nashville, Thomas O. H. Smith, Nashville, H. Frank Taylor, Nashville, for plaintiffs in error.

S. McP. Glasgow, Jr., Nashville, Hugh C. Gracey, Nashville, Albert Ewing, Jr., Nashville, for defendant in error.

HICKERSON Judge.

This suit was brought against Jim Marable and The Fidelity & Casualty Company of New York, surety on his bond as Constable of Davidson County, Tennessee, to recover damages for the alleged wrongful killing of Robert Marcel Wackernie by Constable Jim Marable.

Defendants entered pleas of not guilty, self-defense, justification, and nil debit.

Judgments upon a verdict of the jury were entered for plaintiff against Jim Marable in the sum of $12,500.00 and against The Fidelity & Casualty Company of New York in the sum of $4,000.00, the limit of the bond. Defendants appealed in error to this court.

Assignments of error, I, II, III, and IV raise the question that the trial judge committed error when he refused to direct a verdict for defendants upon their motion.

The court has no constitutional right to direct a verdict when the evidence is in conflict. When considering a motion for directed verdict, all evidence favorable to the party against whom the motion is made, with all reasonable inferences from the evidence favorable to such party, must be accepted as true; and all countervailing evidence discarded. Tennessee Central Railway Co. v. McCowan, 28 Tenn.App. 225, 188 S.W.2d 931; Morgan v. Tennessee Central Railway Company, Tenn.App., 216 S.W.2d 32.

There is evidence in the record which would support the following finding of facts by the jury:

Marcel Wackernie was twenty-three years old when he was killed. He had served several years in the armed forces of the United States. Miss Martha Nell Zanoni and he were engaged to be married on November 8, 1946.

On November 2, 1946, these young people went riding in an automobile. They parked their car headed west on the old Charlotte Pike, near the new Charlotte Pike in Davidson County, Tennessee, two miles from Nashville, at eight thirty o'clock in the evening. For a few minutes they sat in their parked car laughing and talking and discussing their wedding plans. An automobile came meeting them on this road and stopped a short distance in front of them. Defendant, Jim Marable, and James Swafford got out of this car and started towards the car in which this young couple were sitting. James Swafford carried a flashlight. Jim Marable carried a pistol, and he was staggering drunk. Neither of these men were in uniform and they gave the young couple no information nor indication that they were officers. The young couple did not know them at that time.

Mr. Wackernie and Miss Zanoni were committing no crime. They were behaving and acting in a normal, lawful, and seemly manner.

When defendant and Swafford approached the car of Marcel Wackernie, defendant was waiving a pistol, and inquired what the young people were doing. Marcel asked him that he wanted and defendant ordered Marcel out of his car and forced him to obey the order at the point of a pistol in the hands of this Constable defendant, who was drunk.

Marcel Wackernie had a pistol in the car with him which had been given him as a keepsake of the war. When he got out of the car, defendant ordered him to drop the gun, which he did. Defendant opened the door of the car after Marcel got out and the young lady inquired what he wanted. Marcel warned defendant not to harm the young lady. Thereupon, defendant closed the door of the car.

When Marcel dropped the gun a scuffle took place between him and defendant. Marcel was shot in the scuffle by defendant. The aggressor in the affray was defendant. Marcel was reasonably justified in resisting the unlawful and unprovoked and uncalled for assault made upon him and his sweetheart by defendant.

Marcel got into his car after he was shot and had his own pistol and the pistol of defendant in his hands. He drove a few feet and threw the pistol of defendant out of the car, calling and telling defendant that he was returning his gun. This young couple drove to the home of Miss Zanoni where an ambulance was called and the young man was taken to the hospital. He died early the next morning, November 3, 1946, from the effect of the pistol shot which he received in this affray.

At the time of this trouble, defendant was a Constable in Davidson County, Tennessee, sworn to faithfully perform the duties of his office. One duty was that he conserve the peace. Defendant, The Fidelity & Casualty Company of New York, had signed a bond as his surety, conditioned that Jim Marable would faithfully discharge and the duties of his office as Constable.

Applicable Code Sections are:

Code Section 723. 'Bond.--Before entering upon the duties of his office, every constable shall give bond before the county court, with two or more good sureties, to be approved by said court. Said bond shall be in a penalty of not less than four thousand nor more than eight thousand dollars, at the discretion of said court, and shall be payable to the state, and conditioned for the faithful discharge of the duties of said office, and the prompt payment to the proper person of all moneys collected or received by him by virtue of his office. Said bond shall be recorded and filed.'

Code Section 726. 'Oath of constable.--Every constable shall take an oath that he will well and truly serve the state in the office of constable; that he will cause the peace of the state to be kept, to the best of his power; that he will arrest all such persons as go in his sight armed offensively, or who commit any riot, affray, or other breach of the peace; that he will use his best endeavor, on complaint made, to apprehend all felons, rioters, or persons riotously assembled; and that, if such persons flee or make resistance, he will pursue, and make hue and cry, according to law; that he will faithfully, and without delay, execute and return all lawful process to him directed; and that he will well and truly, according to his power and ability, do and execute all other duties of his office.'

Code Section 1823. 'Form, condition, and requisites of official bonds.--The bonds of all public officers required by law to give bond shall, unless it is otherwise provided, be made payable to the state, with such sureties as the officer or court required to approve the same is satisfied are sufficient, and conditioned, in all cases in which a different condition is not prescribed, faithfully to discharge the duties of such office during the time he continues therein, or in the discharge of any part thereof.'

Code Section 1833. 'Obligation of bond.--Every official bond executed under this Code is obligatory on the principal and sureties thereon----

'(1) For any breach of the condition during the time the officer continues in office or in the discharge of any of the duties of such office.

'(2) For the faithful discharge of the duties which may be required of such officer by any law passed subsequently to the execution of the bond, although no such condition is expressed therein.

'(3) For the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office as by the failure to perform, or the improper or neglectful performance, of the duties imposed by law.'

Under the plain meaning of these statutes a constable and the surety on his offical bond are liable to any person injured by a wrongful act of such officer done under color of his office or by virtue of his office. There are decisions of our Supreme Court which hold that the sureties on an officer's bond are only liable for his acts done by virtue of his office. These decisions, however, deal only with the common-law liability of the sureties on an officer's bond with no reference to the liability imposed upon such sureties by the foregoing statutes. (A full and complete discussion of this subject is found in an opinion of this court, prepared by Judge Felts, in the case of State ex rel. Hattie Harbin, Administratrix, v. Robert Dunn et al. Davidson Law. Opinion filed November 13, 1943, unreported, ^[1] since no petition for certiorari was filed.)

Were acts of Jim Marable done under the color of his office?

Concerning the term 'color of office' 15 C.J.S., Color or Colour, pages 235-236, provides:

'A phrase generally defined as meaning a claim or assumption of right to do an act by virtue of an office, made by a person who is legally destitute of any such right; a fraudulent act of an officer in the line of his duty; an act evilly or unjustly done, by the countenance of an office; a pretended, not a real, exercise of an officer's jurisdiction; a pretense of official right to do an act, made by one who has no such right; a wrong committed by an officer under the pretended authority of his office; champerty; color of official authority; the use of official authority as a pretext or cover for the commission of some corrupt or vicious act; also corruptly or with wicked and vicious motive; having the appearance, especially the false appearance,...