Price v. Honeycutt
| Decision Date | 11 October 1939 |
| Docket Number | 233. |
| Citation | 4 S.E.2d 611,216 N.C. 270 |
| Parties | PRICE v. HONEYCUTT et al. |
| Court | North Carolina Supreme Court |
J W. Ragland, of Spruce Pine, and J. C. B. Ehringhaus and Charles Aycock Poe, both of Raleigh, for appellant.
McBee & McBee, of Spruce Pine, and W. C. Berry, of Bakersville for appellee William G. Honeycutt.
Harkins Van Winkle & Walton, of Asheville, for appellee American Indemnity Co.
The relator caused this action to be brought for recovery against the sheriff and the American Indemnity Company, surety on his bond, for damages resulting from excessive force used in an attempt to arrest the plaintiff by the said sheriff under color of his office.
The complaint, amongst other more formal matters, sets up that the sheriff, while acting under color of his office "viciously assaulted, severely wounded and permanently and seriously injured, and arrested the relator herein and imprisoned him in the common jail of said county and there confined him forcibly and against his will, from seven o'clock P. M. until twelve o'clock midnight, or thereabouts, restraining him of his liberty and subjecting him to hardships, privation, humiliation and disgrace". "That said assault was made upon the relator by the said Honeycutt, as aforesaid, with a deadly weapon, to-wit, a blackjack, with which the relator was stricken three or four vicious and powerful blows upon his head, one of which was just above his right eye, causing the permanent loss of sight in said right eye, and greatly injuring and damaging him for life; and that said assault upon, and arrest and imprisonment of, the relator as aforesaid was without legal process or color thereof and not in due course of law." It is further alleged that the conduct of Honeycutt was in wanton and reckless disregard of the rights of the relator and wholly without cause or justification in law.
As the allegations of fact in the complaint are admitted by the demurrer, we may assume that the sheriff had given his official bond with his co-defendant as surety, and that the said bond was conditioned as required by law, approved, accepted, and filed.
The bond referred to is that required by C.S. § 3930, commonly known as the process bond. "The third bond, for the due execution and return of process, payment of fees and moneys collected, and the faithful execution of his office as sheriff, shall be not more than five thousand dollars, in the discretion of the board of county commissioners, and shall be conditioned as follows: *** and in all other things well and truly and faithfully execute the said office of sheriff during his continuance therein ***."
The defendants demurred to the complaint, the defendant Honeycutt upon the ground that he was sued with respect to his official conduct and no cause of action was stated against him in his official character, the defendant American Surety Company upon the ground that the official bond given by it as surety did not cover the facts alleged or the misconduct of the sheriff, if any, and no liability on its part arose upon said bond. The demurrer was sustained and plaintiff appealed.
The court is called upon to answer the single question: Did the facts alleged in the complaint, assuming them to be true, raise a liability upon the sheriff's bond? There are other questions that may help to its answer.
When are the duties of that office well and truly and faithfully performed? Does the public policy to which we have referred go no further than to satisfy some aggrieved person interested in the service of process or defrauded of his moneys? Does it paramount the rights of society merely and not reciprocally the rights of its members? To what extent may the language required by the law to be put into the sheriff's bond be interpreted as reflecting a broader public policy--a more equitable exercise of public power? In the exercise of this power does the sheriff owe no official duty under his bond except to those who have instigated his action--none to those who are on the receiving end and who are dealt with under color of his office?
The factual situation in a number of cases cited by defendant, where official bonds have not been considered under the given circumstances sufficient to cover wrongful acts of the sheriff, may be distinguished from that in the case at bar.
While it is true that the opinion in Davis v. Moore, 215 N.C., 449, 2 S.E.2d 366, brings forward many of the old cases, pertinent of course to the subject, it will be found that these cases did not cover the exact question presented here, and the inferences of law should not now be taken out of their setting. In Davis v. Moore, which is concerned with the negligent act of a deputy in closing the door upon a prisoner in jail and injuring his hand, the court properly declined to hold the incident to be covered by the sheriff's bond.
Crumpler v. Governor, 12 N.C. 52, was concerned with a proceeding on the sheriff's bond for the collection of certain taxes. The gist of that opinion was that the particular taxes sued for could not be recovered under the bond on which summary judgment was entered, without resort to the general condition, which was not required by law to be inserted, that the sheriff shall "in all things well, truly and faithfully execute the said office", which was held to refer only to the duties listed. Since the specific provisions of the various bonds at that time required to be given provided for the security of different taxes, the court held the bond not liable under this general provision.
Governor, to Use of County Trustee, v. Matlock, 12 N.C. 214, deals with a similar situation, holding that the county tax for which a bond had been required by law could not be recovered under this general clause in the sheriff's general official bond required by the Act of 1777.
In Jones v. Montfort, 20 N.C. 69, the opinion written by Gaston, J., it is held that the concluding general clause in the sheriff's bond, relating to his duties, could not be held to "extend to the fiscal duties of the office".
Roger v. Bradshaw, 32 N.C. 229, also held that the clause in the sheriff's official bond relating to his general duties did not extend to the public and county taxes.
In Sutton v. Williams, 199 N.C. 546, 155 S.E. 160, the sheriff had been sued upon his bond for the negligent acts of a prisoner which he had suffered to escape. The opinion does consider the cases above mentioned and construed them as covering the facts in that case; but approval of those cases was not necessary to a decision in the case then under consideration, since the injury complained of could not in any event be considered as a natural and probable consequence of the dereliction of duty attributed to the sheriff, and the opinion adds nothing to the strength of the position by the defendant.
In Midgett v. Nelson, 214 N.C. 396, 199 S.E. 393, 394 the bond sued upon simply stipulated that the surety company "does hereby agree to indemnify the State of North Carolina *** against the loss of money or other personal property through the failure of any of the persons *** named in the schedule forming a part of this bond *** faithfully to discharge the duties of their respective offices or employments as described in such schedule, and honestly to account for all money or other personal property that may come into...
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