Small v. National Sur. Corp.

• Decision Date: 03 April 1942
• Docket Number: 15397.
• Citation: 19 S.E.2d 658,199 S.C. 392
• Parties: SMALL v. NATIONAL SURETY CORPORATION.
• Court: South Carolina Supreme Court

19 S.E.2d 658

199 S.C. 392

SMALL v. NATIONAL SURETY CORPORATION.

No. 15397.

Supreme Court of South Carolina

April 3, 1942

Hemphill & Hemphill, of Chester, and Allen M. Sapp, of Lancaster for appellant.

McDonald Macaulay & McDonald, of Chester, and Gregory &amp Gregory, of Lancaster, for respondent.

FISHBURNE Justice.

This appeal brings up for review a judgment of nonsuit granted by the Circuit Court upon motion of the defendant, National Surety Corporation.The action was brought against the defendant on the official bond of one W. T. Bell, a state highway patrolman, for personal injuries alleged to have been caused by the negligent and unlawful conduct of the patrolman while acting as such on or about the 30th day of June, 1938.

Upon the close of the plaintiff's testimony the Circuit Court held that no right of action accrued to the plaintiff against the surety company on the statutory bond until the plaintiff had obtained a judgment against Bell, the highway patrolman, or his personal representative,--Bell having been killed in the automobile collision in which the plaintiff received his injuries.In granting the nonsuit and dismissing the complaint upon this ground, the Circuit Court stated that the plaintiff had offered sufficient testimony from which the inference could reasonably be drawn that the highway patrolman while engaged in the performance of his official duties was guilty of negligent acts and delicts resulting in injury to the plaintiff; and further stated that the issues would have been submitted to the jury had the Court not been of the opinion that the plaintiff could not maintain the action on the bond without first having obtained judgment against the officer, or his estate.

The sole question presented for determination involves the proper construction of Section 6004, 1932 Code.The specific issue has to do with whether or not under the statute a member of the public injured upon a public highway as the result of negligent and unlawful acts of a highway patrolman, must first bring suit and obtain judgment against such officer, or his legal representative, before recourse may be had on the statutory bond filed by him with the State Highway Department.

The precise question has never before been submitted to the Court, but an examination of our recent reports reveals that in some cases involving the same statute and bond, the offending officer alone was sued; in other actions both the officer and the surety were joined as defendants; and in still others, the action proceeded against the surety alone.The case of Aetna Casualty & Surety Co. v. Yonce, 181 S.C. 369, 187 S.E. 536, embraced two actions, the first of which was brought against the offending highway patrolman Whaley, who having died, the action was continued against his administrator and proceeded to judgment.The other action was commenced by other persons who suffered through the alleged negligence of Whaley, directly against the surety company for the purpose of recovering on the official bond.

In Yongue v. National Surety Corp.,190 S.C. 421, 3 S.E.2d 198, the action was instituted jointly against the highway patrolman and the surety company.The latest case involving a suit of this character is that of League v. National Surety Corp.,198 S.C. 289, 17 S.E.2d 783, wherein the action was brought against the surety company on the official bond of the patrolman without joining the highway officer as a partydefendant.However, as stated, in none of these cases to which we have referred was the question ever raised which is now presented for decision.

The statutory bond which we are called upon to construe follows the language of the statute.In accordance with the well recognized rule of law the statute is as much a part of the bond as if in terms incorporated therein.It follows that the bond must be construed in the light of Section 6004.Kimbrell v. Heffner,163 S.C. 35, 161 S.E. 175, 80 A.L.R. 591.

We here quote the pertinent provisions of the Code Section: "Every officer authorized by this chapter to enforce the provisions of this chapter shall file with the highway department a bond, subscribed by some duly licensed surety company, conditioned for the faithful performance of his duties; for the full, prompt and proper accounting for all funds coming into his hands and conditioned to pay any judgment recovered against him in any court of competent jurisdiction upon a cause of action arising out of breach or abuse of official duty or power, and damages sustained by any member of the public from any unlawful act of such officer."

The same Code section goes on to detail the duties of highway patrolmen.It provides that such officers shall patrol the highways of the State for the purpose of enforcing the traffic laws and all other laws relative to motor vehicle traffic and animal drawn vehicles.Like power is given to them as is conferred upon sheriffs to serve criminal process against offenders; and they are given the same rights as sheriffs to require aid in executing the duties of their office.

It is conceded by the respondent that if this action had been brought on the official bond of a sheriff, the surety on such bond could be sued without joining the sheriff, or if he be dead, his representative; and it would not be necessary that judgment should be first obtained against the sheriff, or his estate,...