Maryland Casualty Co. v. Eaves

• Decision Date: 03 June 1940
• Docket Number: 34171
• Citation: 188 Miss. 872,196 So. 513
• Court: Mississippi Supreme Court
• Parties: MARYLAND CASUALTY CO. v. EAVES

196 So. 513

188 Miss. 872

MARYLAND CASUALTY CO. v. EAVES

No. 34171

Supreme Court of Mississippi, Division A

June 3, 1940

APPEAL from the circuit court of Winston County, HON. JNO. F. ALLEN Judge.

Action by J. D. Eaves against L. C. Kelly and the Maryland Casualty Company, surety on an official bond. Judgment for plaintiff and the surety appeals. Judgment affirmed on liability but reversed and cause remanded for new trial on amount of damages.

Judgment affirmed on liability, reversed and cause remanded.

E. M Livingston and Chas. D. Fair, both of Louisville, for appellant.

The trial court should have sustained the motion to exclude plaintiff's testimony and should have directed the jury to return a verdict for the defendants at the close of plaintiff's testimony. However, after the motion was overruled and a written peremptory instruction requested the peremptory instruction should have been granted for the following reasons: (a) L. C. Kelly, the constable, was not acting in any official capacity at the time of the alleged injury. (b) L. C. Kelly, the constable, was not acting under the color of his office at the time of the alleged injury. (c) The constable had no warrant for the arrest of Eaves, and the testimony showed that no crime had been committed and no law violated; no affidavit was ever made against Eaves; he was never tried for any violation of law; was never arrested and was never cited to appear nor requested to appear before any court to answer any charge of law violation. (d) If L. C. Kelly struck the appellee at any time during the evening or night of October 7, 1939, he was acting as an individual and in no official capacity whatever.

We recognize the principle in Mississippi that if an officer, while acting in his official capacity or under the color of his office, commits a tort or commits an injury, or causes damage to a citizen of Mississippi, that both the officer and the surety on his official bond are liable in damages, but we do not think this is a case that comes within the rule.

The surety on his official bond assumed no liability whatever for the personal acts of the constable; it assumed no liability whatever for any rash act of the constable while he was acting in an individual capacity. The facts and circumstances surrounding the entire controversy show conclusively that he was performing no official duty.

State for the use of Dew v. Lightcap et al., 179 So. 880; Taggart v. Peterson, 181 So. 137; Culverhouse v. National Surety Corp., 171 So. 916; Burge et al. v. Scarbrough, 100 So. 653; Davis v. McDowell, 185 So. 643; McVey et al. v. Gross et al., 11 F.2d 379.

The authorities are uniform that the sureties on the official bond of a sheriff or constable are not liable for the acts of their principal where a person is injured by the personal and private acts of an officer.

57 C. J. 1013, sec. 793; Jordan v. Neer, 125 P. 1117; State v. Mankin, 70 S.E. 764; Chandler v. Rutherford, 101 F. 774; State for the use of Cocking v. Wade, 87 Md. 529, 40 L. R. A. 628; Jackson v. Harris, 236 P. 234, 39 A. L. R. 1306; State ex rel. Sonner v. Dean (W.Va.), 126 S.E. 411; Malone v. Howell, 192 So. 224.

The instructions given to the plaintiff in this case were in error.

Dollar v. Allen West Commission Co., 28 So. 876.

The verdict of the jury is grossly excessive.

We respectfully submit that the jury would have been warranted in believing there was no permanent injury or serious injury. If the jury did believe this, then they could have returned a verdict against the appellant only for the actual damages sustained. They may, however, have believed that Mr. Kelly should be penalized for his acts, but if they did the appellant cannot be penalized by making it pay more than the jury thought the actual damage sustained by the plaintiff.

The court made no inquiry of the jury as to what their intention was. This could have been determined by the court simply interrogating the jury, but this was not done, and the result we get is that the court wrote a verdict for the jury, and we submit that he had no legal authority so to do. It is the duty of the jury to return verdicts into court, and if a verdict is irregular or not in legal form the jury should be instructed as to the proper form and should correct the verdict themselves and return it into open court. This is true even though the jury may have been discharged. The trial court had ample authority to reassemble the jury on the morning he wrote the verdict for them and let the jury correct the verdict and return it into open court.

27 R. C. L. 887; Secs. 605, 606, Code of 1930; Miss. Cent. R. Co. v. Roberts, 160 So. 604; Gillespie v. Olive Branch Bldg. & Lbr. Co. et al., 164 So. 42.

H. T. Carter and Rodgers & Prisock, all of Louisville, for appellee.

Under the law of Mississippi, which differs from some of the states where some of the opinions cited in the brief of appellant came, a constable is not only authorized to arrest a man committing a disturbance in his presence, but it is his duty to do so, and he is not excused simply because he arrests the wrong man; or arrests one Eaves boy when it is another Eaves boy that is making the disturbance. The law certainly does not excuse him simply because he makes the arrest on his wife's property rather than some other person's property, and this is true although he says he was also working for his wife.

Code of 1930, Secs. 632, 1224, 1226, 1227; Vice v. Holley, 88 Miss. 572, 41 So. 7.

Where a constable, while attempting to perform some duty of his office abuses or exceeds his authority or executes it in an unlawful manner to the injury of another his bond is liable. Read 35 Cyc. 1941-1942, and in Mississippi this means an assault and battery.

Carlisle et al. v. Village of Silver Creek, 37 So. 1015; Brown v. Weaver, 23 So. 388.

The fact that he struck and arrested the wrong man does not excuse him any more than if he had shot at Aubry Eaves, the young man who was drunk and disturbing the peace, and had hit J. D. Eaves, a young man who was not doing anyone any harm. This has been decided by our own court.

Vice v. Holley, 88 Miss. 572, 41 So. 7; 19 Cyc. 342.

L. C. Kelly's theory is that he not only didn't arrest him, but that he didn't strike J. D. Eaves, either as a constable or as an individual. He just didn't do it (he says); nevertheless, the jury believed he did strike J. D. Eaves, not only as an individual but while acting as constable and while arresting the appellee, J. D. Eaves.

The proposition that L. C. Kelly was not acting under color of his office was put to the trial judge, first in the form of a motion, then in form of instruction for the Maryland Casualty Company, and then at the end of the trial on motion to arrest the judgment, and the court having the testimony before him overruled all applications. Who could know better from the testimony whether or not the testimony showed "color of office or by virtue of office" than the trial judge? The presumption is that the matter was thrashed out on each motion, on each instruction, and on the attempt to arrest judgment, and the learned circuit judge evidently was well informed on so many attempts to extricate the Maryland Casualty Company, on this proposition.

Hinton et al. v. Sims et al., 158 So. 141; State for use of Johnson v. Cunningham, 65 So. 115.

In the case of Wallace v. State, 21 So. 662, the supreme court of Mississippi held that where an officer while attempting to make an arrest, struck a man with a pistol, knocking him down and knocking him insensible, was guilty of assault and battery in a criminal action. There are a great many cases on the proposition that an officer and his bondsmen are liable for useless assaults made on a prisoner while arresting him, but the case already cited by us of Carlisle v. Village of Silver Creek, reported in 37 So. 1015, seems to us to be exactly in point in this case at bar.

I believed the verdict of the jury clear enough, but in order that there be no question I made a motion to correct it at the bar, and which the court did in its judgment.

Sec. 571, Miss. Code 1930.

However, there was no actual necessity for any reformation or correction therein.

Code 1930, Secs. 601, 756; Cohea v. State of Miss. for use of heirs of Smith, 34 Miss. 179.

In the case at bar, the jury brought the only verdict into court it could have brought. The law fixes the liability of the appellant, and the court rendered the only judgment insofar as the Maryland Casualty is concerned it could have rendered. If there was an excess the plaintiff had a right to remit it under the statute, and if the excess (so called) as against L. C. Kelly, was erroneous, he did not appeal, and makes no complaint as to the judgment against him. Therefore, if the jury did intend to return a verdict against the Maryland Casualty Company in excess of its bond, it cannot complain of the court's action to its benefit as was said in the Cohea case above, 34 Miss. 179: "If the verdict was for too much, the defendants below cannot complain of what was for their benefit."

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