Mitchell v. McGuire

• Decision Date: 25 February 1943
• Docket Number: 6 Div. 112.
• Citation: Mitchell v. McGuire, 244 Ala. 73, 12 So.2d 180 (Ala. 1943)
• Parties: MITCHELL, Judge of Probate of Cullman County, v. McGUIRE.
• Court: Alabama Supreme Court

12 So.2d 180

244 Ala. 73

MITCHELL, Judge of Probate of Cullman County, v. McGUIRE.

6 Div. 112.

Supreme Court of Alabama

February 25, 1943

St. John & St. John, of Cullman, for appellant.

Russell W. Lynne, of Decatur, for appellee.

THOMAS Justice.

The action is against appellant as judge of probate for the penalty to which he is subject if he issues a license for the marriage of a minor without the consent of the parent or guardian.

This court has held that the sureties on the judges of probate's official bond are not liable in an action for tort.Jeffreys v. Malone et al.,105 Ala. 489, 17 So. 21.

In the case of Phillips et al. v. Morrow,210 Ala. 34, 3797 So. 130, 132, it is observed: " 'Exemplary damages are not generally recoverable against sureties upon bonds, even though the breach on the part of the principal was malicious or tortious.'13 Cyc. 116;Lienkauf v Morris,66 Ala. 406;Peelle v. State,118 Ind 512, 21 N.E. 288;Johnson v. Williams ['Adm'r],111 Ky. 289, 63 S.W. 759, 23 Ky. Law Rep. 658, 54 L.R.A. 220, 98 Am.St.Rep. 416.This is also stated to be the general rule by Mr. Sedgwick in his work on Damages, section 370.It will be noted, however, that he cites the case of Floyd v. Hamilton,33 Ala. 235, as opposed to said general rule.It is also apparent that there is a conflict between the Lienkauf and Floyd cases, supra, and each case has been cited approvingly by many subsequent decisions and without taking notice of the seeming conflict.These cases, however, deal generally with sureties on attachment or indemnity bonds to the sheriff as distinguished from those on the bond of public officials, and need not now be reconciled (though in the opinion of the writer the Lienkauf case is supported by reason and the great weight of authority), as we find not only the great weight of authority but two Alabama cases holding that, unless the statute directs to the contrary, sureties upon official bonds are liable only for damages which one may sustain resulting from a breach of the bond and not damages or penalties that may be awarded by way of punishment of the principal.Brooks v. Governor,17 Ala. 806;Jeffreys v. Malone,105 Ala. 489, 17 So. 21.It is true, these two cases dealt with a penalty, rather than exemplary or punitive damages; but the underlying principle of the rule there declared and followed is that unoffending sureties upon official bonds are responsible only for compensatory damages sustained by virtue of a breach of the bond, as distinguished from such penalty or punitive damages as may be awarded by way of punishment against an offending principal. * * *"

See the cases of Wilson v. Orr,210 Ala. 93, 97 So. 133;Hain v. Gaddy,219 Ala. 363, 122 So. 329;Kilgore v. Union Indemnity Co.,222 Ala. 375, 132 Ala. 901;Holland v. Fidelity & Deposit Co., 225 Ala. 669, 145 So. 131.

In 64 A.L.R. 934, the note is to the effect that: "In Phillips v. Morrow, 1923, 210 Ala. 34, 97 So. 130, supra, it was held that where the bonding company did not authorize, direct or participate in the arrest, and did not subsequently ratify same, it was not answerable for punitive damages as distinguished from compensatory damages.In support of its decision the court cited Brooks v. Governor,1850, 17 Ala. 806, andJeffreys v. Malone,1894, 105 Ala. 489, 17 So. 21, and observed that although those two cases dealt with a penalty, rather than exemplary or punitive damages, nevertheless the underlying principle of the rule there declared and followed is that unoffending sureties upon official bonds are responsible only for compensatory damages sustained by virtue of a breach of the bond, as distinguished from such penalty or punitive damages as may be awarded by way of punishment against an offending principle.The case of Lienkauf v. Morris,1880, 66 Ala. 406, in which the sureties were sued with the principal on an attachment bond, is to the same effect as Phillips v. Morrow(Ala.)supra.In the latter case Floyd v. Hamilton,1858, 33 Ala. 235, is cited as being opposed to the general rule that exemplary damages are not recoverable against sureties upon bonds, but no attempt was made to reconcile it."

The cases appear to be unanimous on this point, except Ewton v. McCracken, 9 Ala. App. 619, 64 So. 177, which has not been considered or approved on the instant question in suit for penalties or punitive damages.National Surety Co. v. Plemmons,214 Ala. 596, 108 So. 514;Deason v. Gray,192 Ala. 611, 69 So. 15.

It follows from authorities cited here that the liability under Code 1940, T. 34, § 15 is statutory and highly penal and must be strictly construed.The penalty is pronounced against the judge of probate personally.The penalty prescribed is by way of punishment, and is not compensatory, and the bondsmen are only liable in a compensatory way.Jeffreys v. Malone et al., supra.

The suit in this case being against the judge of probate in his official capacity, and not as an individual, and the judgment being in favor of the plaintiff against him in his official capacity, and not against him personally, the affirmative charge in favor of the defendant should have been given.The court committed error in refusing it and committed error in giving the affirmative charge for plaintiff.

It is insisted by appellee that the ruling on demurrer induced by plaintiff to strike the individual defendant, leaving only the judge of probate as defendant, and by such pleading induced the amendment of the complaint, he is estopped from now insisting that an improper party was before the court.However this is, we will consider the further insistence as to the evidence that is material under the statute.

The trial was had on issue joined on the complaint, the plea of the general issue and special plea number four.

It is the insistence of appellee that the affidavit offered in evidence is not sufficient under Code 1940, T. 34, § 16.The affidavit states that the answers to the questions concerning said parties to the marriage "are true to the best of his knowledge, information and belief."Objection was made to this affidavit by the plaintiff on the following grounds:

"Plaintiff objected on the ground that the affidavit or no part of the whole record complies with the statute under which this suit is brought, and because the affidavit relied on is on information and belief, and not positive terms, and because the affidavit only states what the affiant believes and not what he knows, and because it is made by the party marrying the girl, and the affidavit only purports to be an application for a marriage license, and that the affidavit is not what the statute contemplates and requires, and because the party making the affidavit is an interested party and disqualified."

The court sustained this objection, to which exception was seasonably reserved by appellant.

In the case of Worthen v. State ex rel. Verner et al.,189 Ala. 395, 66 So. 686, 688, a case for the disbarment of an attorney, proceeding for the disbarment at that time were required to be verified by the oath of the party or some other person, taken before any officer authorized by law to administer oaths in or out of the State, that such facts are true, and must be presented to or filed in the circuit court or city court of like jurisdiction, accompanied by surety for costs, to be approved by the judge thereof.In the Worthen case, the court said:

"The statute(section 2997) exacts an affidavit to the effect that the 'facts' averred 'are true.'The objections taken in the quoted grounds of the motion would if sustained, enforce the construction, of the just mentioned provisions of the statute, that...