U.S. Fidelity & Guaranty Co. v. State for Use and Benefit of Stringfellow, 43798

• Decision Date: 14 February 1966
• Docket Number: No. 43798,43798
• Citation: 182 So.2d 919,254 Miss. 812
• Court: Mississippi Supreme Court
• Parties: UNITED STATES FIDELITY & GUARANTY COMPANY v. STATE of Mississippi for Use and Benefit of Mrs. Betty STRINGFELLOW et al.

Page 919

182 So.2d 919

254 Miss. 812

UNITED STATES FIDELITY & GUARANTY COMPANY v. STATE of Mississippi for Use and Benefit of Mrs. Betty STRINGFELLOW et al.

No. 43798.

Supreme Court of Mississippi.

Feb. 14, 1966.

Lester E. Wills, Meridian, for appellant.

Cumbest, Cumbest, O'Barr & Shaddock, Pascagoula, Henley, Jones & Henley, Jackson, for appellees.

RODGERS, Justice:

This case is a sequel of Bearry v. Stringfellow, 246 Miss. 123, 149 So.2d 500 (1963) (Circuit Court Docket No. 1028), and Bearry v. Stringfellow, 247 Miss. 683, 156 So.2d 220, 157 So.2d 491 (1963). The first suit was instituted by Mrs. Betty Stringfellow, the widow, and as Next Friend for the children, of Melvin Ira Stringfellow, against W. D. Bearry, Sheriff of George County, Mississippi, and his Deputy, James H. Smith, for the wrongful death of Mr. Stringfellow. It was charged that the Deputy Sheriff negligently shot and killed Mr. Stringfellow, the husband and father of plaintiffs, while acting in his official capacity. The court granted various instructions on negligence and submitted the issue of punitive damages to the jury. The jury returned a verdict for $50,000 but the trial court required a remittitur of $25,000.

The second suit, supra, grew out of a garnishment served upon the Chancery Clerk to attach fees and allowances due by George County to the Sheriff, W. D. Bearry. This Court held that the fees of the Sheriff were not subject to garnishment.

In the present case, Mrs. Stringfellow filed suit in the name of the State of Mississippi, for the use and benefit of herself and children, against the United States Fidelity & Guaranty Company, W. D. Bearry, Sheriff, and James H. Smith, Deputy Sheriff, of George County, Mississippi.

The declaration is in two counts. In Count I, plaintiffs allege a judgment in the sum of $25,000 against defendant, W. D. Bearry, Sheriff, as the result of the grossly negligent and wrongful killing of Melvin Ira Stringfellow by James H. Smith, Deputy Sheriff. The plaintiffs further allege that the Sheriff was liable for the wrongful acts of the Deputy Sheriff while acting as agent and deputy within the scope of his employment. The declaration further alleges that the United States Fidelity and Guaranty Company was the surety of W. D. Bearry, Sheriff, by virtue of its bond conditioned according to state law (Mississippi Code Annotated section 4033, 1956) in the sum of $4,000. Plaintiffs charge that it is an absolute obligation of the bonding company to protect the public against the acts of the Sheriff and the acts of his Deputy. Plaintiffs' demand judgment of the United States Fidelity & Guaranty Company for $4,000 and six per cent interest.

Count II of the declaration adopts the allegations of Count I, and charges that United States Fidelity & Guaranty Company also issued a $10,000 Public Employees Blanket Bond to W. D. Bearry, Sheriff, insuring him against loss caused to him through the failure of any of his employees to perform faithfully his duties. It is then charged that the Sheriff had sustained a loss of more than $10,000, and that the Insurance Company owed the Sheriff the sum of $10,000, and charged that the plaintiffs 'have an absolute right to collect said funds directly in this joint lawsuit against the United States Fidelity & Guaranty Company and the former sheriff and his deputy', for $10,000.

The declaration had attac ed ot it the following exhibits: (1) A copy of the final judgment of this Court in the first case, above set out. (2) Photostatic copy of 'Public Employees Blanket Bond issued to the Sheriff, W. D. Bearry.' (3) Coroner's return on execution showing sale of Sheriff's property for $6,950. (4) Sheriff's bond for $4,000 issued by United States Fidelity & Guaranty Company. (5) Sheriff's oath of office.

W. D. Bearry answered and moved the court to dismiss the action because (1) the plaintiffs are the same parties who filed suit in Circuit Court, Docket No. 1028 (first suit) under the wrongful death statute (Mississippi Code Annotated section 1453, 1956) for the death of Melvin Ira Stringfellow; that a judgment for $25,000 was affirmed by the Supreme Court; that all matters were litigated between the parties and the judgment is res judicata to all matters litigated, or could have been litigated, and is res judicata as to the instant suit; (2) that all issues sought to be raised were litigated, or could have been litigated, in cause Docket No. 1028--that Mississippi Code Annotated section 1453 (1956) provides that there shall be but one suit for the same death; (3) that Mississippi Code Annotated section 4234 (1956) contemplates suit against the Sheriff and his surety in the same suit if the surety is to be liable on the bond; (4) there is a garnishment pending against United States Fidelity & Guaranty Company in which issue has been joined but no final order has been entered and is now pending, and plaintiffs are estopped to maintain litigation on the subject; and (5) that all matters which plaintiffs now seek to litigate were litigated, or should have been litigated in suit Docket No. 1028 (first suit), or should have been raised, litigated and tried.

The Sheriff admitted he had lost by execution more than $10,000 because of the judgment rendered against him, but denied the suit should be maintained against him, that the matter set out in Count I had been settled because plaintiffs had waived their right to sue the United States Fidelity & Guaranty Company, his sureties, and plaintiffs cannot maintain the suit on any ground.

The United States Fidelity & Guaranty Company moved to strike from Counts I and II of the declaration the charge against it on account of the judgment against the Sheriff on the suit on the surety bond because the judgment in that case, Docket No. 1028, included punitive damages and the surety is not liable for such damages on the official bond.

The appellant, United States Fidelity & Guaranty Company, contends that no proof was offered to show a breach of the Sheriff's official bond requiring 'that Bearry * * * shall well and faithfully perform the duties of his office', and since the judgment was not on the bond but was a judgment in tort, the judgment did not establish any liability on the surety under Mississippi Code Annotated section 4234 (1956). This section is in the following words:

'The remedy upon sheriff's bond shall be joint and several against all or any one or more of the obligors; but in all suits thereon against the surety or sureties, the liability of the sheriff shall be first fixed, except when the sheriff is a party to the suit, has died or removed or is not found.'

The pertinent part of Mississippi Code Annotated section 4235 (1956) is as follows: 'All sheriffs shall be liable for the acts of their deputies, and for money collected by them.'

We have held that the Sheriff's bond is liable for the acts of a deputy sheriff acting within the scope of his authority. McCoy v. Key, 155 Miss. 64, 123 So. 873 (1929); Dean v. Brannon, 139 Miss. 312, 104 So. 173 (1925).

In the case of Brown v. Weaver, 76 Miss. 7, 23 So. 388, 42 L.R.A. 423 (1898) we pointed out that the sheriff's bond is liable for damages caused by the unjustifiable shooting of a fleeing misdemeanant by a deputy sheriff.

Since appellees obtained an instruction on punitive damages in the first case, and this Court held that the Sheriff was liable for such damages, appellant, United States Fidelity & Guaranty Company, now argues that it is not liable as surety for the amount of the judgment which includes punitive damages.

The appellant cites Vanderslice v. Shoemake, 233 Miss. 523, 102 So.2d 804 (1958); Maryland Casualty Company v. Eaves, 188 Miss. 872, 196 So. 513 (1940); Lizana v. State, to Use of Kelly, 109 Miss. 464, 69 So. 292 (1915).

We agree that a surety is not liable for punitive damages but we do not agree that the record in this case shows that the appellees and cross-appellants obtained a final judgment for punitive damages for the following reason: We point out in the case of Fowler Butane Gas Company v. Varner, 244 Miss. 130, 141 So.2d 226 (1962) that 'punitive damages', 'exemplary damages' and 'vindictive damages' are in legal contemplation synonymous terms, and are sometimes called 'smart money'. Punitive damages are 'added damages' and are 'in addition to the actual or compensatory damages due because of...