Rives v. Bolling

• Decision Date: 09 September 1942
• Docket Number: Record No. 2552.
• Citation: 180 Va. 124
• Court: Virginia Supreme Court
• Parties: C. E. RIVES AND INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. MARY J. BOLLING, ADMINISTRATRIX OF THE ESTATE OF LOUISE BOLLING, DECEASED.

Page 124

180 Va. 124

C. E. RIVES AND INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. MARY J. BOLLING, ADMINISTRATRIX OF THE ESTATE OF LOUISE BOLLING, DECEASED.

Record No. 2552.

Supreme Court of Virginia, Staunton.

September 9, 1942.

Present, Campbell, C.J., and Holt, Hudgins, Gregory and Spratley, JJ.

1. POLICE — Negligence — Handling Loaded Weapon. — A police officer is charged with knowledge of the danger inherent in the handling of a loaded weapon.

2. POLICE — Negligence — Failure to Determine Whether Revolver Loaded — Case at Bar. — The instant case was an action to recover damages against a State police officer and the surety on his bond, executed in accordance with section 2154(51a) of the 1940 Supplement to the Code of 1936. The police officer, after cleaning his service revolver in his room in a rooming house, thinking it unloaded, twirled it on his finger. The gun was discharged with the result that plaintiff's intestate was killed.

Held: That it was the duty of the police officer to take active and careful measures to discover whether or not the revolver was loaded before he used it in a manner calculated to cause injury, and the failure to perform this obligation constituted negligence.

3. POLICE — Negligence — Handling Loaded Revolver — Question for Jury — Case at Bar. — The instant case was an action to recover damages against a State police officer and the surety on his bond, executed in accordance with section 2154(51a) of the 1940 Supplement to the Code of 1936. The police officer, after cleaning his service revolver in his room in a rooming house, thinking it unloaded, twirled it on his finger. The gun was discharged with the result that plaintiff's intestate was killed.

Held: That it was the function of the jury to determine whether the officer was guilty of negligence under the particular circumstances, and the jury having so found, the result was conclusive against the officer.

4. NEGLIGENCE — No Part of Official Duty. — Negligence is of itself no part of official duty.

5. NEGLIGENCE — What Constitutes — Failure to Perform or Improper Performance of Duty. — Negligence may be the failure to perform duty or the performance of duty in an unlawful or improper manner.

6. POLICE — Bond — Liability on. — Official acts may be lawfully or unlawfully performed, dependent on the manner of performance. It is for relief against negligent or unlawful performance that section 2154(51a) of the 1940 Supplement to the Code of 1936 requires a liability bond to be given by a police officer. No relief is afforded against lawful acts properly performed. If official acts only mean lawful acts, no recourse could be had against any surety.

7. POLICE — Bonds — Liability of Surety — Negligent Handling of Revolver — Case at Bar. — The instant case was an action to recover damages against a State police officer and the surety on his bond, executed in accordance with section 2154(51a) of the 1940 Supplement to the Code of 1936. The police officer, after cleaning his service revolver in his room in a rooming house, thinking it unloaded, twirled it on his finger. The gun was discharged with the result that plaintiff's intestate was killed. Under regulations of the Division of Motor Vehicles, State policemen are required to keep their firearms clean and in good condition, and they do not have an opportunity to do this work while on patrol duty. The section of the Code cited requires that the bond given shall cover any work connected with or necessarily incidental to the duties of the police officer, and the bond covered the same field as the statute.

Held: That the negligent performance of the duty required of the officer was the proximate cause of the injury, and the surety was liable.

Error to a judgment of the Circuit Court of Wise county. Hon. George Morton, judge presiding.

The opinion states the case.

Robert B. Davis, O. M. Vicars and E. D. Vicars, for the plaintiffs in error.

M. M. Heuser, for the defendant in error.

SPRATLEY, J., delivered the opinion of the court.

Mary J. Bolling, administratrix of the estate of Louise Bolling, deceased, instituted this action for the recovery of damages in the sum of $2,000 against C. E. Rives, a State police officer, and his surety, the Indemnity Insurance Company of North America. The notice of motion alleged that Rives, on duty as a police officer, did, while cleaning, examining, and inspecting his service revolver, which he was required to keep in good working condition, negligently and carelessly cause a bullet to be discharged from the said revolver wounding and killing the decedent, Louise Bolling. The insurance company was made a party by reason of its suretyship upon the bond hereinafter mentioned. The defendants filed separate demurrers, pleas of not guilty, and answers denying the allegations of the notice of motion.

The trial court overruled the demurrers, and the case went to trial upon the general issue. Motions to strike at the conclusion of the evidence for the plaintiff and at the conclusion of all of the evidence were likewise overruled.

The jury returned a verdict for the plaintiff in the sum of $2,000 against both defendants. To the action of the trial court in entering judgment thereon, this writ of error was granted.

The defendants assign several grounds of error, the principal grounds being (1) that the evidence fails to show that the injury complained of resulted from any negligent act of the defendant, Rives; and, (2) that it fails to show that the accident occurred while Rives was on duty within the meaning of the statute or of the bond upon which this action is based.

There is no conflict in the evidence. Rives was a police officer appointed by the Director of the Division of Motor Vehicles of Virginia. He was stationed in the patrol district which includes Norton, Virginia. He and two other State police officers resided at Norton in the home of Mrs. Mary J. Bolling, the mother of Louise Bolling, decedent. Rives roomed with a fellow-trooper, P. E. Trower.

Rives came home to his room between ten-fifteen and ten-thirty p.m., on the night of January 23, 1941, after doing patrol duty from twelve o'clock noon of that day until ten o'clock p.m. When he arrived, Trower, Louise Bolling, and a first cousin of the latter, Evelyn Bolling, were in his room. The two young women had been called in by Trower to make up the beds and straighten up the room because the housekeeper had been busy and unable to perform that duty on that day.

After they had performed the tasks for which they had been called, the young women remained in the room talking to Trower and helping him clean his cartridges and the metal ornaments and fittings on his uniform.

Rives upon his arrival, joined in the general conversation and began the work of cleaning two revolvers and their respective cartridges. One was his service revolver, and the other was a privately owned firearm which he had borrowed from Trower. He said he first unloaded his service revolver and cleaned it and its bullets. He then laid both revolvers on a table. Next he cleaned the revolver belonging to Trower, wiped its bullets off, reloaded it, and put it on a dresser in the room.

Rives then went back where he had been cleaning his service revolver, picked it up, and started across the room to put it in his holster. He says, "Remembering I...