State Of West Va. Which Sues For The Use Of Leo James Brown v. Spangler.

• Decision Date: 05 April 1938
• Docket Number: (No. 8664)
• Citation: 120 W.Va. 72
• Court: West Virginia Supreme Court
• Parties: State of West Virginia which sues for the use of Leo James Brown v. George 0. Spangler et al.

120 W.Va. 72

State of West Virginia which sues for the use of Leo James Brown

v.

George 0. Spangler et al.

(No. 8664)

Supreme Court of Appeals of West Virginia.

Submitted March 22, 1938.

Decided April 5, 1938.

1. Bonds

Under Code, 6-2-3, a bond of a peace officer, conditioned for the faithful performance of his official duties and the accounting for all money which may come into his hands, is an official bond. Where such a bond is in the penalty of not less than $3,500.00, it covers damages which may be done by said officer by the unlawful or careless use of a pistol which he is authorized to carry, whether the bond is so conditioned or not. (Code, 61-7-5).

2. Municipal Corporations

Where a peace officer's official bond is made payable to the State of West Virginia for the use of a municipal corporation, the State is the obligee, and the words referring to the municipal corporation are mere surplusage and should be ignored in an action on the bond by a plaintiff damaged by the unlawful or careless use of a pistol.

3. Arrest

An officer, with authority to conserve the peace, may, without a warrant, arrest any person who he, upon reasonable grounds, believes lias committed a felony, though it afterwards appears that no felony was actually perpetrated. This rule applies to a person charged with a felony in a sister state.

4. Arrest

Point two of the syllabus in Gecrge v. Railway Co., 78 W. Va. 345, 88 S. e. 1036, to the effect that an offense committed in one state does not justify an arrest of the perpetrator thereof in another state, otherwise than upon a warrant for his arrest as a fugitive from justice, is overruled to the extent that it applies to an arrest for a felony, when such arrest is based upon reasonable grounds.

Kenna, Judge, absent.

Error to Circuit Court, Mineral County.

Action in debt by the State of West Virginia, for the use and benefit of Leo James Brown, against George 0. Spangler, principal, and the Fidelity & Casualty Company of New York, surety, on a bond for the faithful performance by the principal of his duties as town sergeant of the town of Ridgeley. To review a judgment in favor of the plaintiff, the surety brings error.

Affirmed.

Wm. MacDonald, for plaintiff in error.

R. A. Welch and H. R. Athey, for defendant in error.

Riley, Judge:

This action in debt was brought in the name of the State of West Virginia for the use and benefit of Leo James Brown (hereinafter designated as plaintiff) against George O. Spangler, principal, and the Fidelity and Casualty Company of New York, surety, on a bond for the faithful performance, by the principal, of his duties as town sergeant of the town of Ridgeley. To a judgment for plaintiff in the amount of $1,000.00, based upon a jury verdict, the surety prosecutes error.

The declaration alleges, among other things, that Spangler was appointed and qualified as chief of police and town sergeant of the town of Ridgeley; that he gave a bond, in the amount of $3,500.00, with the Fidelity & Casualty Company of New York as surety, for the faithful performance of such duties as may be imposed upon him by law, and the accounting for all money which may come into his hands; that by virtue of Code 1931. 61-7-5, the bond, being in the amount of $3,500.00, was further conditioned that Spangler and his surety would be liable for damages which may be caused by the former in the unlawful use of a pistol carried by him as such police officer of the town of Ridgeley; that Spangler, during his term of office and while the bond was in force and effect, unlawfully assaulted the plaintiff, Leo James Brown, with his pistol, in that by aid of the unlawful use of said pistol, he arrested the plaintiff and compelled the latter to accompany him to the jail in Cumberland, Maryland, where plaintiff was confined for a long period of time; that by said unlawful use of a pistol, Spangler did intimidate the plaintiff and by fear cause him to submit to an illegal arrest and imprisonment; and that plaintiff was humiliated and disgraced, caused to suffer mental agony and lowered in the respect and estimation of his fellow man.

The surety company interposed a demurrer to the declaration, assigning a number of general grounds in support thereof. It is apparent from a careful reading of the declaration and the demurrer that the demurrer is bottomed in chief on the fact that the action was brought by the State for the use and benefit of Leo James Brown, whereas, the covenant of the bond reads that the said Spangler and surety "are held and firmly bound unto The State of West Virginia, for the use of the town of Ridgeley." The trial court overruled the demurrer. The surety company then moved for a bill of particulars, and in response to the motion, the plaintiff filed what purports to be a bill of particulars, which, in fact, is a reiteration of the allegations of the declaration.

On January 6, 1936, the defendant, George E. Spangler, then the town sergeant and chief of police of the town of Ridgeley, went to plaintiff's home in the town, and without a warrant, entered the same, arrested the plaintiff and took him to Cumberland, Maryland, where he was held for a period of twenty-two hours before being released. Spangler justified his action on the ground that the Cumberland police directed him to make the arrest, though the record discloses that the arrest was not made pursuant to any proceeding had against the plaintiff and without any warrant having been issued, either by the West Virginia authorities or those of the city of Cumberland. The evidence is in conflict as to how the arrest was made. Plaintiff and his witnesses say that Spangler entered the house through the kitchen door and commanded plaintiff to come with him; that, upon the command being refused, without any threatening action on plaintiff's part, Spangler drew his pistol, pointed it at plaintiff and by the threat thereof caused the latter to submit to arrest. On the other hand, Spangler testified that when he asked plaintiff to come with him, plaintiff picked up a coal shovel, threatened to strike witness with it, and witness did not draw his pistol until confronted by plaintiff's threatening action. The evidence, on behalf of the plaintiff, is to the effect that there was no coal shovel in the house, and that Spangler's testimony as to plaintiff's resort to a coal shovel in resistance of arrest was without verity. There is also a conflict as to whether or not at the time of the arrest Spangler was intoxicated. The constable who accompanied Spangler to plaintiff's residence, and other witnesses, testified that Spangler was drunk, and competent evidence was likewise introduced, which, taken by itself, would indicate that Spangler was sober. Be that as it may, the conflict in the evidence in this case may be brushed safely aside with the statement, which we think sound under all the circumstances, that it was solved by the jury verdict in plaintiff's favor.

We are persuaded that the solution in this case, both on the rulings of the court on the demurrer and the motion to set aside the verdict, to a large extent, centers upon the question as to whether or not this action, inasmuch as the bond reads in the name of the State of West Virginia for the use of the town of Ridgeley, should have been brought in the name of the town, as contended for by counsel for the surety company, or whether it was properly brought in the name of the State of West Virginia for the use of the plaintiff. The bond, being conditioned for the faithful performance by Spangler of his official duties, and the accounting for all money which may come into his hands, is, in every sense of the word, an official bond. Code, 6-2-3. That being so, and being in the penalty of not less than $3,500.00, under Code 61-7-5, it covers "the damages done by the unlawful or careless use of" such dangerous weapon as Spangler was then authorized to carry, whether so conditioned or not. As said by this court in Town of Lester v. Trail, 85 W. Va. 386, 390, 101 S. E. 732, 733, cited with approval in Town of Mabscott v. Saunders, 114 W. Va. 196, 171 S. E. 410, "The statute, ex propria vigore, becomes an added condition to such bond." Accord: Hatfield, Sheriff, ex rel. Justice v. Wyatt, 99 W. Va. 604, 130 S. E. 129, in which a declaration was held good on a demurrer, in an action brought by the sheriff of McDowell County on the relation of a relator, injured by the unlawful use of a pistol, on a bond payable to the sheriff. The defendant surety company cites State ex rel. McDermott, Admr., etc., v. U. S. Fidelity & Guaranty Company, 85 W. Va. 720, 102 S. E. 683, to the effect that an action will not lie in the name of the State of West Virginia for the use of a person injured by the unlawful use of a deadly weapon by an officer of a municipality on a bond payable to the municipality. Clearly, this case is good law. It simply holds that an action cannot be brought on a bond by a person other than the obligee. However, it does not sustain counsel's contention. In the instant case, the bond is payable to the State of West Virginia for the use of the town of Ridgeley. Under the clear wording of this bond, the state and not the town of Ridgeley is the obligee. Therefore, by no stretch of the imagination is the town of Ridgeley, as contended for by counsel, the proper plaintiff. The words, "for the use of the town of Ridgeley", at most, are inapt. They...