Maryland Casualty Co. v. Town of Terry

• Citation: 185 So. 228,184 Miss. 33
• Decision Date: 12 December 1938
• Docket Number: 33389
• Court: United States State Supreme Court of Mississippi
• Parties: MARYLAND CASUALTY CO. v. TOWN OF TERRY, TO USE OF DUBOSE

185 So. 228

184 Miss. 33

MARYLAND CASUALTY CO. v. TOWN OF TERRY, TO USE OF DUBOSE

No. 33389

Supreme Court of Mississippi, Division A

December 12, 1938

APPEAL from the circuit court of Hinds county HON. JULIAN P ALEXANDER, Judge.

Action by the Town of Terry for the use of W. B. Dubose, against Ramsey T. Chapman, night marshal of the town of Terry, and the Maryland Casualty Company, surety, for damages allegedly sustained by the usee because of a wrongful assault and battery made by Chapman while discharging an official duty. From a judgment against both defendants the last-named defendant appeals. Judgment reversed and judgment rendered for the appellant.

Judgment reversed and rendered.

Watkins & Eager, of Jackson, for appellant.

Even a surety on a marshal's bond was not liable for that officer's personal tort and the act here complained of was not done under color of the marshal's office and said act was not done while the marshal was performing a power or duty within his authority, there is, therefore no liability.

State for use of Dew v. Lightcap, 179 So. 880; Taggart v. Peterson, 181 So. 137; Radford v. Hull, 30 Miss. 712; Brooks Oil Co. v. Weatherford, 91 Miss 501; U.S. F. & G. v. Yazoo City, 116 Miss. 358; Humphrey v. Ownby, 104 S.W.2d 398; Jordan v Neer, 34 Okla. 400; State v. Mankin, 68 W.Va. 772; Chandler v. Rutherford, 101 F. 754; Hinton v. Sims, 171 Miss. 741.

The appellant surety is not liable for the acts complained of here because said acts were committed by the principal as night marshal, if done in any official capacity at all, and since the bond sued upon covered only the acts of Chapman as night watchman.

50 C. J. 124; Alcorn v. State, 57 Miss. 273; Pickle v. Brooks, 162 Miss. 87; Robinson v. State, 47 Miss. 423; Houser v. State, 110 N.E. 665; Goins v. Hudson, 55 S.W.2d 388; State v. Thomas, 12 S.W.2d 1034; U.S. v. Cheeseman, Fed. Cas. No. 14, 790.

H. V. Watkins and Ralph B. Avery, both of Jackson, for appellee.

The assault and battery complained of here was committed by Ramsey T. Chapman while acting as night marshal of the Town of Terry, Mississippi, and was not a personal tort.

McLauren v. McDaniel, 78 Miss. 1; Lizana v. Kelley, 109 Miss. 464, 69 So. 292; State V. McDaniel, 78 Miss. 14; Pierce v. Chapman, 165 Miss. 749, 143 So. 845; Greenius v. American Surety Co., 92 Wash. 401, L.R.A. 1917F 1134, 159 P. 384; People, use of Johnson, v. Morgan, 188 Ill.App. 250.

The bond given by Chapman in this case was given by him as night marshal and covered acts done in that capacity.

11 Brandt on Suretyship and Guaranty (3 Ed.), sec. 664, page 1204; City of Chicago v. Southern Surety Co., 239 Ill.App. 628; Sec. 2888, Code of 1930; Sims v. Hundley, 125 Miss. 355, 87 So. 89.

Argued orally by Mrs. Elizabeth Hulen and Tom Watkins, for appellant, and by Ralph and Sam E. Lackey, for appellee.

OPINION

Smith, C. J.

This is an action against Chapman, night marshal of the town of Terry, and the appellant, alleged to be the surety on his official bond, for damages to the appellee, Dubose, Usee, alleged to have been sustained by him because of a wrongful assault and battery made on him by Chapman while discharging an official duty. A judgment was rendered against both Chapman and the Casualty Company, but only the latter appeals. The appellant requested, but was refused, a directed verdict. Two questions arise therefrom. (1) Does the bond sued on cover Chapman's acts as night marshal; and should that question be answered in the affirmative? (2) Was a wrongful assault made by Chapman on Dubose while acting as night marshal ?.

The bond is to the town of Terry, Mississippi, was executed on the 16th day of February, 1936, and recites that:

"The condition of the aforegoing obligation is such that whereas, the said Principal was elected or appointed Night Watchman for the term beginning on the 8th day of February, 1937, and ending on the 8th day of February, 1938.

"Now, therefore, if the said Principal shall, during the term of this bond, well and faithfully perform all and singular the duties incumbent upon him by reason of his election or appointment as said Night Watchman, except as hereinafter limited, and honestly account for all moneys coming into his hands as said Night Watchman, according to law then this obligation shall be null and void; it is otherwise to be and remain in full force and virtue."

The office or position of night marshal is not created by Chapter 50, Code of 1930, governing municipalities or by an ordinance of the town of Terry. The minutes of the town's Mayor and Board of Aldermen of the 2nd day of February, 1937, sets forth the following: "'Motion was made that we hire a night Marshal for twelve months and that he be secured by a $ 2, 000.00 bond. Vote was unanimous. Ramsey T. Chapman was elected by ballot and was called in and sworn in as night watchman until he secured his bond. Salary for night marshal was fixed as $ 40.00 a month.'"

According to the record a commission to Chapman as night marshal was necessary before he could enter upon the discharge of his duties as such. This commission was not issued to him until sometime in April, 1937, prior to which, according to the record, Chapman acted only as night watchman for which it does not appear that a bond by him was necessary.

The office of marshal required by Section 2511, Code of 1930, was filled by another. Chapman's duties as night marshal were "to apprehend any suspicious persons, to make arrests and to preserve the peace." His duties as night watchman included only "watching streets and business section; making rounds of the town." The bond on its face covers only Chapman's...