Yongue v. National Sur. Corp.

• Decision Date: 02 June 1939
• Docket Number: 14889.
• Citation: 3 S.E.2d 198,190 S.C. 421
• Parties: YONGUE v. NATIONAL SURETY CORPORATION et al.
• Court: South Carolina Supreme Court

3 S.E.2d 198

190 S.C. 421

YONGUE v. NATIONAL SURETY CORPORATION et al.

No. 14889.

Supreme Court of South Carolina

June 2, 1939

McDonald Macaulay & McDonald, of Chester, for appellants.

Hamilton Gaston & Hamilton, of Chester, for respondent.

H. F RICE, Acting Associate Justice.

This statement is taken from the Transcript of Record for the Supreme Court:

"This action was originally commenced by service of summons and complaint upon the defendant on the 30th day of June, 1938. The plaintiff alleged injury and damage by reason of certain actions of the defendants, B. E. Fallaw and Hoyt Boatwright members of the South Carolina Highway Patrol and as such bonded by the defendant, National Surety Corporation.

"In due time the individual defendants moved to strike out certain portions of the complaint relating to their surety bonds and, also, to make the complaint more definite and specific in certain particulars. The defendant, National Surety Corporation, demurred to the complaint upon the ground that the actions of the highway patrolmen as alleged in the complaint were not covered by the terms of the bonds issued by the surety company, and upon other grounds set out in the demurrer.

"The matter came on for a hearing before Judge Gaston, who subsequently filed an order holding that the alleged actions of the individual defendants, if proven, would constitute a breach of the bond, and further holding that the surety corporation should be joined in the same action with the individual defendants, but further holding that the plaintiff could not bring suit in one action upon the two bonds issued on behalf of the two defendants as highway patrolmen.

"In due time the defendant, National Surety Corporation, served notice of appeal."

The second ground of demurrer has been abandoned by the attorneys for the defendant. The only point of contention in this appeal is whether or not, if the statement of facts in the complaint are true, the bonds of the officers are liable. Of course, for the purpose of the demurrer, such facts as are set out in the complaint are admitted by the defendant. This does not mean, however, that such admissions extend to any legal conclusions which may be stated. The complaint shows that at the time of the arrest of the plaintiff the officers had no warrant. In his order overruling the demurrer, his honor, Judge Gaston, held that the officers could make the arrest without a warrant, although no misdemeanor had been committed in their presence or in the presence of either of them. Sections 6004 and 6005 of the Code of 1932 confer upon the patrolman the power of a sheriff or other police officer. See also State v. Luster, 178 S.C. 199, 182 S.E 427. However, the latter case does not hold that such peace officer, who in that case was a patrolman, could arrest without a warrant; but it is clearly stated in the opinion that the patrolman was attempting to make the arrest for a misdemeanor committed in his presence, although the patrolman was not then on the highway. I do not think the stautes quoted above confer upon the officers the authority to make arrests for misdemeanors not committed in their...