Mason v. Chase

• Court: Vermont Supreme Court
• Writing for the Court: Before SHERBURNE; SHERBURNE
• Citation: Mason v. Chase, 111 A.2d 246, 118 Vt. 369 (Vt. 1955)
• Decision Date: 04 January 1955
• Docket Number: No. 1056,1056
• Parties: Clark H. MASON v. James O. CHASE.

Page 246

111 A.2d 246

118 Vt. 369

Clark H. MASON v. James O. CHASE.

No. 1056.

Supreme Court of Vermont.

Jan. 4, 1955.

Loveland & Hackel, Rutland, for plaintiff.

Lawrence & O'Brien, Rutland, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CHASE, JJ.

SHERBURNE, Chief Justice.

This is an action to recover damages for taking insufficient bail upon a capias writ, which had been handed to the refendant as a constable for service. The cause comes here upon plaintiff's exceptions to the direction of a verdict for the defendant, upon his motion, and to the entry of a judgment for the defendant.

The undisputed evidence viewed most favorably to the plaintiff reasonably tended to show the following facts: On March 31, 1949, the defendant, as constable, had a writ for service in an action of tort brought by Clark H. Mason, the plaintiff herein, against Clarence J. Carr, and returnable to Rutland county court. This writ commanded any sheriff or constable in the state to attach the goods, chattels or estate of the said Clarence J. Carr in the amount of $4,000 and for want thereof to take his body and him safely keep so that he should be had to appear before such court. On such date, not having found sufficient attachable property of his, the defendant arrested the said Clarence Carr, and accepted as bail on the writ Donald J. Carr, brother of said Clarence J. Carr. Such writ was duly returned to and entered in said court, and on November 16, 1949, the plaintiff recovered a judgment for damages and costs of $2,444.51, upon which a certified execution was granted. On the same day the plaintiff took out a certified execution and delivered it to the defendant, who made a return of non est inventus thereon on January 12, 1950. Thereafter, on February 28, 1950, before any action had been taken against the bail, James S. Holden, a judge of said court, ordered that all further proceedings on said judgment and upon any execution thereon be stayed until the determination of a petition for a new trial brought by Clarence J. Carr. This stay was vacated on August 11, 1950. Donald J. Carr, the bail, is a U.S. immigration inspector. At the time he became bail he resided on the government reservation of the border office at Highgate Springs. He was transferred to Montreal by official order in March or April, 1950, and his family moved there in the latter month. He resided there for about two years, and returned to Vermont in March, 1952. On the day when he endorsed his name on the writ as bail, and was so accepted by the defendant, Donald J. Carr owned a 1948 automobile of the value of about $1,800, statements from the U. S. Accounting Office that there was due him about $4,000, a claim against the U. S. government for $800, three National Service Insurance policies with cash surrender value of about $1,220, and War Savings bonds to the amount of $50 given to him by his aunt and standing in their two names. In addition to the above he and his wife owned War Savings bonds to the amount of $700, which were purchased by her and standing in their two names, furniture to the value of $4,000, to the purchase of which they both contributed, and a checking account of from $300 to $500, and a savings account of about $3,000, both in the Swanton Savings Bank and both standing in their two names. When they moved to Montreal the only assets he left in Vermont were the two accounts in the Swanton bank. No part of the judgment has been collected. No writ of scire facias has been brought against Donald J. Carr as provided in V.S.1947, § 2216, the plaintiff claiming that legal service could not be made upon him while in Montreal.

In briefing his side of the case the defendant raises a question as to whether the plaintiff has brought a common-law action for negligence, or whether he is entitled to the benefit of the provisions of V.S.1947, § 2201, that 'The officer taking surety on a writ of attachment as provided in section 2199 shall be answerable to the plaintiff for damages occasioned by the insufficiency of such surety, unless it appears on trial that at the time of taking the surety the same was amply sufficient, and an action shall not be maintained against a person so taking bail when it is sufficient.'

Among other things the declaration alleges: 'That by virtue of the statutes in such case made and provided * * * said defendant had the duty of committing said Clarence J. Carr to jail, unless he exposed sufficient property to secure the officer, or unless some person became good and sufficient surety. That notwithstanding his said duties as aforesaid, said defendant arrested the body of said Clarence J. Carr and wilfully, negligently and wrongfully took and accepted insufficient, worthless and improper surety and bail, to wit, one Donald J. Carr, thereby wantonly and maliciously injuring said plaintiff and depriving him of his statutory rights as aforesaid. * * * That said Donald J. Carr was at all times herein mentioned an insufficient surety and bail, without such assets or means as would make him eligible or satisfactory as a surety and bail as aforesaid, all of which said defendant knew or ought to have known at the time of the service of said original writ. That by reason of the wilful, malicious, negligent, unlawful and grossly careless acts of said defendant, as aforesaid, plaintiff has been unable to collect or satisfy his aforesaid judgment in whole or in part * * *.'

V.S.1947, § 2199, in force at the time of taking the said Donald J. Carr, as bail, provided: 'When a defendant is arrested on mesne process in a civil action, the officer shall * * * commit him to jail, unless he exposes sufficient property to secure the officer, or some person becomes surety to the satisfaction of the officer, by indorsing his name on the writ as bail.' When the defendant officer chose to accept Donald J. Carr as bail he owned the plaintiff the duty of taking bail that was amply sufficient under the provisions of this section and section 2201.

It is claimed that the use of such words as 'wilfully', 'negligently', 'wantonly', 'maliciously' and the like make the action a common-law action. We fail to see how an officer could be liable under § 2201 unless he was negligent or acted wilfully and intentionally. The officer, when the bail proves insufficient, and he is sued therefor, can only defend himself by proving that the surety when taken, was amply sufficient. An apparent sufficiency will not excuse him. Harrington v. Bogue, 15 Vt. 179, 182, an action for the neglect of defendant's deputy; Hazard v. Slade, 1 D.Chip. 199. If an officer wilfully and intentionally fails to take ample bail he can be made to pay exemplary damages if the bail proves to be insufficient. This is so because such conduct would be calculated to casue a creditor extra trouble and expense in endeavoring to collect his judgment. This is recognized in Crooker v. Hutchinson, 1 Vt. 73, 79, where it speaks of where the officer can be supposed to have acted in good faith.

There is nothing in the declaration to indicate that this suit is predicated upon § 2201. But it sets up all the facts required to make a case thereunder, and as a matter of pleading no direct reference to the statute was required. Walker's Guardian v. Hendee, 100 Vt. 362, 365, 137 A. 334; Sharby v. Town of Fletcher, 98 Vt. 273, 277, 127 A. 300; Morrisey v. Hughes, 65 Vt. 553, 558, 27 A. 205; Westcott v. Central Vt. R. Co., 61 Vt. 438, 441, 17 A. 745. When the plaintiff at the start of the trial waived exemplary damages the words 'wilfully', 'wantonly', 'maliciously' and the like became surplusage, and such conduct did not need to be proved. Pleading more facts than are necessary does not obligate a party to prove them. Healey v. Cady, 104 Vt. 463, 467, 161 A. 151; Humphrey v. Twin State Gas & El. Co., 100 Vt. 414, 424, 139 A. 440, 56 A.L.R. 1011; Woodhouse v. Woodhouse, 99 Vt. 91, 110, 130 A. 758.

The defendant cites a number of cases to the effect that in the absence of wilful negligence an officer is liable for actual damages only, and that the defendant in such cases may show the insolvency of the debtor or other material facts that reduce the damages recoverable to nominal damages or the actual damages suffered. See Roberge v. Town of Troy, 105 Vt. 134, 141, 163 A. 770. None of the cases cited are analogous to this one. By the provisions of V.S.1947, §§ 1535-1536 and 1532, sheriffs and constables shall receive all writs and precepts issuing from lawful authority at any time and place, unless they can show reasonable cause to the contrary, and shall execute and return the same agreeably to the direction thereof, and may be fined for wilfully refusing to do so. Under such circumstances any other rule about liability for damages would be unduly harsh. But under § 2199 an officer does not have to accept bail unless satisfactory to him, barring a possible abuse of discretion, and if he does accept bail it is not unreasonable that he should be answerable in damages for any insufficiency under the provisions of § 2201.

Section 2201 originated in section 4 of an act concerning sureties and scire facias, passed on March 3, 1787, R.1787, p. 147, which provided 'that when any officer or other person serving an attachment * * * shall take insufficient bail or sureties in the action, he shall be liable to answer all damages to the creditor or creditors, his or their executors, administrators or assigns, who may recover the same against the person taking such insufficient bail or sureties, his heirs, executors or...