Town of Nutter Fort ex rel. Queen v. Corbin
| Decision Date | 26 October 1937 |
| Docket Number | 8552. |
| Citation | 193 S.E. 560,119 W.Va. 324 |
| Parties | TOWN OF NUTTER FORT ex rel. v. CORBIN et al. QUEEN |
| Court | West Virginia Supreme Court |
Submitted September 7, 1937.
Syllabus by the Court.
1. If a peace officer, in attempting to make a lawful arrest for felony or misdemeanor, is assaulted by the accused, the officer is not bound to retreat, but may repel force by force, and, if necessary to save himself from serious bodily harm or loss of life, he may even kill the offender. But of all this the jury must judge from the circumstances of the case, under proper instructions pertaining to an officer's duty to make the arrest and his attendant right to defend himself.
2. In an action on a policeman's bond for damages for alleged wrongful death of plaintiff's decedent through the policeman's use of a deadly weapon, there being evidence tending to show that the officer acted in self-defense while attempting to arrest the deceased, it was prejudicial error to refuse to instruct the jury, at the defendants' request, respecting an officer's duty, and his complementary right, in such circumstances.
Error to Circuit Court, Harrison County.
Action by the Town of Nutter Fort, on the relation of Loretta Wilson Queen, against Frank Corbin and others. To review a judgment for plaintiff, defendants bring error.
Reversed and remanded.
D. H. Hill Arnold, of Elkins, for plaintiffs in error.
Harvey F. Smith and Creed S. Simons, both of Clarskburg, for defendant in error.
As Chief of Police of the Town of Nutter Fort in Harrison County in 1934, Frank Corbin was under statutory bond in the penalty of $3500.00 with Maryland Casualty Company as surety. The bond was conditioned for the officer's faithful performance of his official duties and for the payment of any damage that might be done by him in the unlawful or careless use of a revolver or other dangerous weapon.
On November 7, 1934, in Nutter Fort, Corbin, while purporting to act in pursuance of his police duties, shot and killed William W. Wilson.
This action is based on the bond and is prosecuted by Wilson's personal representative against Corbin and his surety for damages for the alleged wrongful death of the decedent. On a jury verdict for $2750.00, in favor of the plaintiff and against the defendants, the trial court rendered judgment. To the judgment the defendants prosecute this writ of error.
March 13, 1934, the council of the town, by order of record appointed Corbin as Chief of Police to serve from March 16 to March 31, inclusive. Another order was entered by the council March 27, employing Corbin as such officer for the month of April. By a later order, April 10, 1934, Corbin was employed as Police Chief at the salary stated in the order "as long as the council desires his services." The manner and extent of his employment stood thus at the time he killed Wilson.
Corbin's bond was executed by him and his surety March 19, 1934. It was accepted by the council. On the theory that the bond covered only such part of the initial period of employment March 16 to March 31, as was unexpired when the bond was executed, the defendants assert that there cannot be any liability on the bond for conduct of the officer the following November. This position is grounded on a recital in the bond which limits the liability to conduct of Corbin "during his term of office, as said Chief of Police." It is urged, in effect, that the word "term" was intended by the parties to apply only to the last twelve days of March.
With this contention of defendants we cannot concur. By a provision of the bond the right is expressly reserved to both the surety and the town to terminate the surety's liability on thirty days' notice. It seems unlikely the parties would have made provision for termination on notice of thirty days if the bond was to be in effect only from March 19 to 31. We are impressed that the "term of office" stated in the bond must be deemed to include the period of Corbin's employment as Chief of Police, within the contemplation, of course, that premiums on the bond for the extended period would be paid. The record does not disclose the time for which there was payment of premiums. We indulge the presumption that if the surety company was, in fact, paid a premium sufficient to cover only the latter days of March, or any other term expiring prior to November 7 1934, such fact would have been introduced into the record. The most there is in the evidence bearing on the phase of the case pertaining to the period of the bond is the testimony of the town recorder that the records of the municipality do not disclose termination of the bond prior to the homicide.
The fatal event occurred in the home of Enoch Longenette. Wilson and the Longenettes were acquaintances. He lived in the village of Quiet Dell about three miles from their home. In the afternoon of November 7th, while Mrs. Longenette was alone in the home, Wilson, drunk and quarrelsome, went there and demanded that he be admitted. Mrs. Longenette refused to admit him. Later, when a small son of the Longenettes was entering the home on his return from school, Wilson forced himself into the house along with the boy. Mrs. Longenette testified that Wilson then sent the boy away from the house and, brandishing a loaded revolver in her face, threatened her life. Presently, she managed to leave the house, ran to the home of a neighbor and telephoned to Corbin who was at police headquarters and requested him to come at once to her home and remove the intruder. Corbin came on a motorcycle within four or five minutes. When he reached the Longenette home, she called to him from her retreat to be careful because Wilson was armed. Corbin went into the house through the kitchen door and almost immediately after his entry, he fired from his revolver the shots which killed Wilson. Corbin testified that when he entered the kitchen, he was faced by Wilson standing in the middle of the room with a shot gun aimed at him, and that Wilson seemed to be trying to...
To continue reading
Request your trial