State ex rel. Mayle v. Aetna Cas. & Sur. Co.

• Decision Date: 04 March 1969
• Docket Number: No. 12747,12747
• Citation: 152 W.Va. 683,166 S.E.2d 133
• Parties: STATE ex rel. Vivian MAYLE, as Administratrix of Estate of Adair Robert Kennedy v. AETNA CASUALTY AND SURETY COMPANY, a Corporation, et al.
• Court: West Virginia Supreme Court

Page 133

166 S.E.2d 133

152 W.Va. 683

STATE ex rel. Vivian MAYLE, as Administratrix of Estate of Adair Robert Kennedy v. AETNA CASUALTY AND SURETY COMPANY, a Corporation, et al.

No. 12747.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 21, 1969.

Decided March 4, 1969.

Syllabus by the Court

1. The obligation of a surety being accessory to that of his principal, the surety's liability is generally measured by the liability of the principal and cannot exceed it.

2. A surety does not insure his principal against loss but agrees to be answerable for any debt, default or miscarriage of such principal.

3. Unless a principal on an official bond becomes liable for some default of his duties, the surety on such bond cannot be liable.

4. When a judgment against the principal on an official bond is satisfied by payment, the obligation of the surety on such bond is automatically extinguished.

Hale J. Posten, Robert T. Donley, Morgantown, for appellants.

Clark B. Frame, Charles H. Haden, II, Morgantown, for appellee.

CAPLAN, Judge:

This is an appeal by Aetna Casualty and Surety Company from a judgment of the Circuit Court of Monongalia County, West Virginia. It appears from the record that Adair Robert Kennedy, a resident of Taylor County, died in Taylor County as a result of gunshot wounds inflicted upon him by Herbert Lawson, a deputy sheriff of said county. This alleged unlawful act was committed in Taylor County. Gary Wade and Frank Surina, Jr., state conservation officers, are alleged to have participated in the shooting.

Vivian Mayle qualified as administratrix of the estate of Adair Robert Kennedy and instituted an action in Monongalia County against Lawson, Wade and Surina for the wrongful death of the decedent and against the sureties upon the official bonds of said defendants. None of the individual defendants was served with process in Monogalia County. Service upon the sureties was made by serving the state auditor, such service being based on the fact that the sureties were non-resident corporations doing business in Monongalia County.

Upon the trial of this matter the jury returned a verdict against defendant Gary Wade in the amount of $300.00 and against Aetna, as surety on his bond, in the amount of $3,500.00; against Frank Surina, Jr. in the amount of $300.00 and against Aetna, as surety on his bond, in the amount of $3,500.00. The individual defendants, Wade and Surina, have each satisfied the judgment against them. Aetna Casualty and Surety Company made timely motions to set aside the verdicts and judgments and moved for judgments in its favor. In each case the motion was overruled. It is from these rulings that this appeal is now prosecuted.

Verdicts were also returned against Lawson and his surety, but no appeal was taken and such verdicts are not involved in this appellate proceeding.

While Aetna assigns numerous errors it relies principally upon assignment No. 1, namely, that the court erred in entering judgment against it as surety upon an official bond in excess of the liability of the principal as determined by a jury. Therefore, succinctly stated, the issue is: Can a judgment against a surety exceed that against the principal upon the same set of facts?

An official bond is collateral security for the faithful performance of an officer in the discharge of his official duties. It is an obligation binding the surety on the bond to make good that officer's default, if any should occur. Should there be no default, no liability is incurred by the surety. However, should the principal become liable for some breach of his official duties, the surety is called upon, in accordance with the terms and to the extent of the bond, to pay the amount of the principal's liability.

It is a well settled principle of law that the extent of liability of the surety is limited by the penalty of the bond and is otherwise the same as that of the principal. 'The liability of a surety cannot exceed that of his principal.' 43 Am.Jur., Public Officers, Section 415. As long ago as 1866, the Supreme Court of the United States declared in United States v. Burbank and Allsbury, 4 Wall. (U.S.) 186, 18 L.Ed. 321, 'It is unnecessary to refer to authorities to show that the liability of the surety cannot exceed that of his principal; and that amount having been fixed by a judgment at law, it formed the rule to determine the sum to be recovered in this suit.' Our research reveals that the foregoing quote reflects the law as it exists today.

This Court has spoken on this matter on many occasions, its decisions being in general agreement with the principles enunciated above. See State ex rel. Russell v. Leedy, 141 W.Va. 474, 91 S.E.2d 477; Town of Clendenin ex rel. Fields v. Ledsome, 129 W.Va. 388, 40 S.E.2d 849; State ex rel. Sabatino v. Richards, 127 W.Va. 703, 34 S.E.2d 271; and State ex rel. Boone National Bank of Madison v. Manns, 126 W.Va. 643, 29 S.E.2d 621.

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