State ex rel. Russell v. Leedy, CC826

• Decision Date: 21 February 1956
• Docket Number: No. CC826,CC826
• Citation: 91 S.E.2d 477,141 W.Va. 474
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Winona RUSSELL v. Jack LEEDY.

Page 477

91 S.E.2d 477

141 W.Va. 474

STATE of West Virginia ex rel. Winona RUSSELL v. Jack LEEDY.

No. CC826.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 24, 1956.

Decided Feb. 21, 1956.

Syllabus by the Court.

1. An action of covenant growing out of a personal injury allegedly inflicted by a special police officer of a railway company is subject to a statutory limitation of one year, Code, 55-2-12, since the right of recovery against the surety does not extend beyond that of the principal.

2. A special police officer who has been appointed in accordance with Code, 61-3-41, and whose employer has given bond under Code, 61-7-4, is not required to give an additional bond as required by Code, 61-7-2.

3. An action of covenant cannot be maintained against a special police officer appointed at the request of a railway company under the provisions of Code, 61-3-41, who has subscribed to, and filed the proper oath of office, and for whose appointment the railway company has given bond, as required by Code, 61-7-4, when such officer is the sole defendant and has not signed the bond given by his employer.

J. S. Redmond, Bluefield, for plaintiff.

Crockett & Tutwiler, Welch, for defendant.

LOVINS, Judge.

This suit was brought in the name of the State of West Virginia who sued at the relation and for the benefit of Winona Russell, in the Circuit Court of McDowell County, West Virginia. Originally, the action was brought on the 13th day of January, 1955, against Jack Leedy and the National Surety Corporation, a corporation.

On motion of plaintiff's counsel, the Norfolk and Western Railway Company, a corporation, was made a party defendant on the 4th day of February, 1955. Process bearing such date was issued as to the Railway Company and properly served.

The purpose of the action is to recover damages for an alleged assault suffered by the plaintiff, as well as for false imprisonment.

The original declaration indicates that the Railway Company's name was interlined as a party defendant.

It is alleged that the defendant, Leedy, was appointed a special police officer for the Railway Company, in accordance with statutory authority; took and filed the oath as such officer, as required by statute; that the Railway Company filed a bond in the penalty of $10,000 with the National Surety Corporation as surety thereon. The bond recites the provisions of the statute under which Leedy was appointed; and was conditioned to pay all damages not exceeding $3,500 in any one case accruing to any one:

'* * * by the accidental discharge or improper or negligent discharge or other unlawful use of any revolver or pistol or other dangerous weapon of like kind or character by such Special Police Officer or Officers, whether heretofore or hereafter so appointed and qualified, while actually engaged in his or their duties or in doing anything reasonably incident to such duties, then this obligation shall be null and void; otherwise to remain in full force and effect.'

The bond was dated December 9, 1951, but was not in force at the time of the commission of the offenses charged in the declaration. The declaration charges that the defendant, Leedy, breached the condition of the bond by maliciously assaulting Winona Russell, beating her with a certain revolver or other weapon of like kind and character, ejecting her from the railway station at Welch, West Virginia, and in the process of such, injuring said Winona Russell about her mouth, eyes and face, from which she suffered permanent injury. It is also charged in the declaration that the said Leedy maliciously imprisoned Winona Russell, without reasonable or probable cause, for--hours, following the assault.

The declaration charges that the condition of the bond was thus breached by the defendant, Leedy.

The Railway Company needlessly craved oyer of the summons which is a part of the record, in accordance with Chapter 96, Acts of the Legislature, 1949, Regular Session, and demurred to the declaration.

In addition to the demurrer of the Railway Company, the National Surety Corporation, the Railway Company and Leedy pleaded the statute of limitations; that the bond on which the National Surety Corporation was surety, had expired and had been cancelled; and that the New Amsterdam Casualty Company, a corporation, was surety on a substituted bond. The defendant, Leedy also pleaded non est factum averring that he had not signed the bond on which the action was brought.

The parties appeared on the 7th day of March, 1955, and the trial court, having heard arguments on the demurrer and special pleas, was of the opinion to dismiss the action as to the National Surety Corporation, the Railway Company and continued the action as to the defendant, Leedy, until the June, 1955 term of court. The defendant, Leedy, also filed another plea in which he reiterates that the bond was not his act and deed; that the bond had expired at the time of the acts charged to Leedy in the declaration, and for further plea, alleged that he did not violate or break any condition or covenant of the bond sued on, and that he was not guilty of the acts alleged in the declaration in the manner and form alleged in such declaration, or in any other manner.

The plaintiff was granted leave of court to amend her declaration and the case was remanded to rules; the trial court also adjudged that it was unnecessary to issue process thereon.

On or about June 15, 1955, there was an appearance by the plaintiff and the defendant, Leedy, who relied upon his three special pleas filed herein, to which the plaintiff replied generally. A jury was impaneled. The plaintiff introduced certain evidence and asked leave of the court to substitute the bond on which the Railway Company was principal and the New Amsterdam Casualty Company as surety, dated December 29, 1953, in lieu of the bond described in the original declaration. Counsel for the defendants resisted such motion. The court, upon considering the motion, declared a mistrial and continued the case.

Thereupon, the defendant filed an amended declaration which is in substance and effect identical with original declaration and the first bond declared upon, with the exception that the New Amsterdam Casualty Company is shown as surety on the bond. The bond described in the amended declaration being the same as the bond described in the original declaration, it would serve no useful purpose to describe the second bond in detail.

On or about the 23rd day of August, 1955, the defendant, Leedy, demurred to the amended declaration and assigned as grounds for such demurrer the following: (1) That this action of covenant against him is predicated upon a bond to which he is not a party; (2) that this action of covenant is on a bond in which the Railway Company is principal and the New Amsterdam Casualty Company is surety, but neither the principal nor surety on the bond is a party to this action; (3) that only the parties to a bond are liable thereon in an action of covenant; (4) that if defendant, Leedy, committed the assault and best the plaintiff as charged in the declaration, plaintiff's right of action against him as an individual is an action of tort.

The court overruled such demurrer, and upon its own motion and the joint application of the parties, certified to this Court the following questions:

'(1) Is it necessary for a railroad special police who has qualified and been appointed under the provisions of Code 61-3-41 to sign or execute a pistol bond authorizing him to carry a pistol as required by Code 61-7-2 when a bond has been executed by the railroad company for him in accordance with the provisions of Code 61-7-4?

'(2) Will such execution of the pistol bond by...