State ex rel. Verdis v. Fidelity & Cas. Co. of New York

• Citation: 199 S.E. 884,120 W.Va. 593
• Decision Date: 10 November 1938
• Docket Number: 8785.
• Parties: STATE ex rel. v. FIDELITY & CASUALTY CO. OF NEW YORK et al. VERDIS
• Court: Supreme Court of West Virginia

199 S.E. 884

120 W.Va. 593

STATE ex rel. VERDIS v. FIDELITY & CASUALTY CO. OF NEW YORK et al.

No. 8785.

Supreme Court of Appeals of West Virginia.

November 10, 1938

Submitted October 25, 1938.

Syllabus by the Court.

An arrest by a constable for an alleged misdemeanor committed in his presence is an act virtute officii for which, if the arrest was unwarranted, the constable and the surety on his official bond may be held liable in damages.

Error to Circuit Court, Raleigh County.

Action on a constable's bond by the State, on the relation of Mike Verdis, against Fidelity & Casualty Company of New York and another. Judgment for defendants, and plaintiff brings error.

Reversed verdict set aside, and new trial awarded.

Clay S Crouse and Jno. Q. Hutchinson, both of Beckley, for plaintiff in error.

W. A. Thornhill, Jr., and W. H. McGinnis, Jr., both of Beckley, for defendants in error.

FOX Judge.

Mike Verdis complains of the action of the circuit court of Raleigh County in sustaining a motion to strike out his evidence and direct a verdict, and the judgment of nil capiat rendered by the court thereon, in an action at law instituted by the said Verdis against the Fidelity & Casualty Company of New York and Emmett Williams, to which actions of the court exceptions were made at the time.

Emmett Williams was elected constable for Marsh Fork District of Raleigh County in 1936, and duly qualified as such, executing a bond in the penalty of $3,500 with the Fidelity & Casualty Company of New York as surety. The obligation of the bond was that "the said Emmett Williams shall faithfully discharge the duties of the said office of Constable and account for and pay over, as required by law, all money which may come to his hands by virtue of the said office"; and the declaration alleges that the said bond was further conditioned as provided by Code, 61-7-5, relating to the unlawful or careless use of deadly weapons. On the 8th day of February, 1937, during the term of office for which he was elected, and while his bond was in full force and effect, the said Williams arrested the plaintiff, Mike Verdis, at his place of business at Edwight in said county, and took him before a justice of the peace upon a charge of selling beer to an intoxicated person; the charge was informal, was not pressed and was, in fact, dismissed by the justice on the day following. This suit was instituted by the plaintiff against the said constable and the surety on his bond to recover damages for such arrest.

Mike Verdis operated a business, part of which was the sale of beer. The evidence shows that Williams appeared at Verdis' place of business about nine o'clock in the evening, February 8th, and took into possession a slot machine which he charged Verdis with operating in violation of law. Later in the evening, about fifteen minutes before twelve o'clock, and near closing time, Williams again appeared at Verdis' place of business at and near which a number of people had congregated, including one Jake Webb. There is evidence in the record indicating that Webb was under arrest at the time. Verdis sold Webb a bottle of beer, either in the actual presence of Williams or so near that he immediately, and before the beer was consumed, went into Verdis' place of business and inquired who had sold Webb the bottle of beer, to which inquiry Verdis replied that he had made the sale. Williams then stated that Webb was intoxicated and immediately arrested Verdis for the offense of selling beer to a person intoxicated at the time. He took Verdis into custody, ordered him to leave his place of business, without permitting him to close up for the night, and transported him to the office of a justice of the peace some distance away, where he was released and permitted to return to his home nearly two hours later. On the following day, Verdis, appearing before the same justice, was fined for operating a slot machine, and the charge against him for selling beer to an intoxicated person, not pressed by Williams or any other person, was dismissed by the justice. On these facts this suit was instituted. A demurrer to the declaration was overruled, and the case went to trial. After the plaintiff rested his case, a motion was made by the defendants to strike out plaintiff's evidence and direct a verdict in their favor. The motion was sustained and the jury returned a directed verdict for the defendants, on which the judgment complained of was rendered. It is stated in the petition for writ of error that the court's action was based upon the theory that "the defendant's acts were unlawful and not done under color or by virtue of his office because the plaintiffs' evidence showed that in fact no offense was committed in the presence of the defendant constable and the acts of the defendant constable were unlawful." There is nothing in the orders of the court showing the grounds upon which the motion to direct a verdict was sustained.

Assuming the ground stated above to be that which controlled the decision of the court, and we find none other therefor consideration of the law governing the liability of public officials and sureties on their bonds in cases of this character is called for. The declaration in this case charges that the said Williams made the arrest "under color of the authority by virtue of his office as said constable." A distinction seems to be recognized between an act done by virtue of an office and one done under color of office, but in either case the surety is liable for the acts of its...