State v. Smith

Decision Date27 January 1930
Docket Number28360
Citation125 So. 825,156 Miss. 288
CourtMississippi Supreme Court

Division A

1. LIMITATION OF ACTIONS. Limitation of one year held inapplicable in action against sheriff and surety for damages by reason of having been shot and wounded by deputy (Hemingway's Code, sections 2640, 3286).

Limitation of one year under Code 1906, section 3102 (Hemingway's Code, section 2640), held inapplicable as to action against sheriff and surety on his official bond for damages by reason of having been shot and wounded by a deputy, wherein cause of action was based on breach of deputy sheriff's official duties, since a sheriff, under Code 1906, section 4664 (Hemingway's Code, section 3286), is liable on official bond for official misconduct of deputies, including the exercise of due care while making arrests.

2 OFFICERS. Official bond of public officer is contract which is breached by failure to discharge any of official duties. Official bond of a public officer is a contract which the law requires him to execute by which he and his sureties covenant and agree that he will faithfully discharge all of the duties of his office, which contract is breached by failure of officer to discharge any of his official duties.

3. LIMITATION OF ACTIONS. Limitation as to action on official bond is that provided for actions on written contracts, in absence of statute to contrary.

In the absence of a statute to the contrary, the limitation within which an action must be brought on an official bond is that provided by statute for actions on written contracts.


APPEAL from circuit court of Pearl River county HON. J. Q. LANGSTON Judge.

Action by the State, for the use of H. P. Smith, against Arthur H. Smith and others. Judgment of dismissal, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Mize, Mize & Thompson, of Gulfport, for appellant.

This is not an action for assault and battery within the meaning of section 2640 of Hemingway's Code of 1927, requiring it be brought within one year, but is a suit upon a breach of bond and official duty of the sheriff of Pearl River county. The sheriff of Pearl River county or his surety was not guilty of assault and battery because neither was present, aiding and abetting; neither one authorized or directed it to be done, but both are responsible by virtue of the official duty of the sheriff, which the surety guaranteed he would faithfully perform.

McLauren v. McDaniel, 27 So. 994; Brown case, 76 Miss. 7; Johnson v. Cunningham, 107 Miss. 141; Bell v. Kansas City R. R. Co., 68 Miss. 19; Union Indemnity Company v. Webster, 118 So. 794.

The fact that the plaintiff lost his leg is simply evidence of the extent of his injury, and if the action is one for breach of contract then section 2640 does not apply, but is covered by section 2635 of Hemingway's Code of 1927.

R. C. L., vol. 17, page 807, section 173; Corpus Juris, vol. 37, page 689; St. Louis R. R. Co. v. Batesville, 86 Ark. 200.

The defendants in this case are being sued not for an assault and battery, but they are being sued for a breach of contract and official duty, which resulted in a serious and permanent injury to the plaintiff. And the one year statute of limitations does not apply.

J. W. Cassedy, Jr., of Brookhaven, and Hall & Hall, of Columbia, for appellees.

The principal or master, in order to be held responsible for an assault and battery in a civil action, does not have to be present and aiding and abetting and does not have to authorize or direct it to be done.

Brown v. Weaver, 76 Miss. 7, 23 So. 388.

It is well settled that the deputies are all servants of the sheriff, and, in law, they are considered but one person.

Smith's Sheriffs, etc., p. 21; Brown v. Weaver, 76 Miss. 7, 23 So. 388; Dean v. Brannon, 104 So. 173, 139 Miss. 312; McLaurin v. McDaniel, 27 So. 994, 78 Miss. 1; Brown v. Weaver, 76 Miss. 7, 23 So. 388; Johnson v. Cunningham, 65 So. 115, 107 Miss. 141.

A tort is a legal wrong committed upon the person or property, independent of a contract.

38 Cyc. 415.

Parties are bound by and estopped to controvert or deny allegations or admissions in their own pleadings.

Parkhurst v. McGraw, 24 Miss. 134; Anderson v. Anderson, 112 So. 603, 147 Miss. 515.

Aside from the proposition that appellant is now estopped to claim that his action is ex contractu, we submit that in view of all the authorities on the subject appellant's cause of action is unquestionably ex delicto.

Hodges v. Mills, 104 So. 165, 139 Miss. 347; Hembree v. Johnson, 80 So. 554, 119 Miss. 204.

It is not the mere fact that there may have been a breach in the condition of the bond that fixes the limitations of the actions or determines the nature of the action, but the controlling factor as to the nature of the action and its limitation depends upon the character of the breach.

Sonoma County v. Hall, 62 P. 257; Stephenson v. N. O. Ry. & Light Co., 115 So. 412; Chappel v. Natl. Surety Co., 191 N.C. 703, 133 S.E. 21; Auchampaugh v. Schmit, 70 Ia. 642, 59 Am. Rep. 459; Allen v. State, 6 Kan.App. 915, 51 P. 572; State v. Blake, 2 Oh. St. 147; State v. Conway, 18 Oh. 234; State v. Davis, 42 Ore. 34, 71 P. 68, 72 P. 317.

If appellant's complaint is ex contractu in form, the fact still remains undisputed that the object of the action is for the recovery of damages for an assault and battery.

Birmingham v. C. & O. R. R., 98 Va. 548, 37 S.E. 17; Bodne v. Austin, 156 Tenn. 353, 2 S.W.2d 100.


Smith, C. J.

This is an action at law in the name of the state, for the use of H P. Smith, against Arthur J. Smith, a sheriff, and the surety on his official bond, for damages sustained by the usee because of having been shot and wounded by a deputy of the sheriff. The declaration alleges that "said deputy, with gross negligence and carelessness, pointed his pistol at said plaintiff and commanded him to throw up his hands, and while said H. P. Smith was throwing up his hands in obedience to the order of said deputy sheriff, the said deputy sheriff, with gross negligence and carelessness, fired the pistol he had drawn on said H. P. Smith, plaintiff, while acting in the discharge of his duties as deputy sheriff, and the bullet so fired from said pistol by said deputy struck said plaintiff in the leg, and from the bullet wound caused by the discharge of said bullet as aforesaid, plaintiff's leg had to be amputated." The...

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