Opinion
No. 34171.
June 3, 1940.
1. SHERIFFS AND CONSTABLES.
Whether constable was attempting to arrest injured party and therefore was acting in an official capacity so as to render surety on official bond of constable responsible for the injuries, would be judged from what constable said and did.
2. SHERIFFS AND CONSTABLES.
In action on official bond of constable for injuries unlawfully inflicted, where jury could believe from the evidence that just before constable struck plaintiff, constable told plaintiff that he was under arrest, whether constable was acting in an official capacity so as to render surety responsible for his acts was for the jury, though constable did not consummate his purpose and abandoned it.
3. SHERIFFS AND CONSTABLES.
The fact that injured party had done nothing to justify his arrest, and that constable's attempt to make arrest was unlawful, did not relieve surety on constable's official bond from liability for injury inflicted by constable.
4. SHERIFFS AND CONSTABLES.
Constable in attempting to make arrest, though without actual right so to do, was acting under "color of office", so as to render surety on his official bond liable for acts of constable as acts performed in an official capacity.
5. OFFICERS.
The liability of the bondsmen of a public officer is not limited to acts done by officer virtute officii but extends to illegal acts done colore officii.
6. SHERIFFS AND CONSTABLES.
Where official bond of constable was in the sum of $1,000, and in action thereon court instructed that punitive damages might be awarded against constable, but jury rendered verdict for $1,500 without indicating what portion thereof represented punitive damages, judgment against surety for $1,000 was improper, since surety was not liable for punitive damages and was liable for actual damages only up to $1,000.
APPEAL from the circuit court of Winston county; HON. JNO. F. ALLEN, Judge.
E.M. Livingston and Chas. D. Fair, both of Louisville, for appellant.
The trial court should have sustained the motion to exclude plaintiff's testimony and should have directed the jury to return a verdict for the defendants at the close of plaintiff's testimony. However, after the motion was overruled and a written peremptory instruction requested the peremptory instruction should have been granted for the following reasons: (a) L.C. Kelly, the constable, was not acting in any official capacity at the time of the alleged injury. (b) L.C. Kelly, the constable, was not acting under the color of his office at the time of the alleged injury. (c) The constable had no warrant for the arrest of Eaves, and the testimony showed that no crime had been committed and no law violated; no affidavit was ever made against Eaves; he was never tried for any violation of law; was never arrested and was never cited to appear nor requested to appear before any court to answer any charge of law violation. (d) If L.C. Kelly struck the appellee at any time during the evening or night of October 7, 1939, he was acting as an individual and in no official capacity whatever.
We recognize the principle in Mississippi that if an officer, while acting in his official capacity or under the color of his office, commits a tort or commits an injury, or causes damage to a citizen of Mississippi, that both the officer and the surety on his official bond are liable in damages, but we do not think this is a case that comes within the rule.
The surety on his official bond assumed no liability whatever for the personal acts of the constable; it assumed no liability whatever for any rash act of the constable while he was acting in an individual capacity. The facts and circumstances surrounding the entire controversy show conclusively that he was performing no official duty.
State for the use of Dew v. Lightcap et al., 179 So. 880; Taggart v. Peterson, 181 So. 137; Culverhouse v. National Surety Corp., 171 So. 916; Burge et al. v. Scarbrough, 100 So. 653; Davis v. McDowell, 185 So. 643; McVey et al. v. Gross et al., 11 F.2d 379.
The authorities are uniform that the sureties on the official bond of a sheriff or constable are not liable for the acts of their principal where a person is injured by the personal and private acts of an officer.
57 C.J. 1013, sec. 793; Jordan v. Neer, 125 P. 1117; State v. Mankin, 70 S.E. 764; Chandler v. Rutherford, 101 Fed. 774; State for the use of Cocking v. Wade, 87 Md. 529, 40 L.R.A. 628; Jackson v. Harris, 236 P. 234, 39 A.L.R. 1306; State ex rel. Sonner v. Dean (W. Va.), 126 S.E. 411; Malone v. Howell, 192 So. 224.
The instructions given to the plaintiff in this case were in error.
Dollar v. Allen West Commission Co., 28 So. 876.
The verdict of the jury is grossly excessive.
We respectfully submit that the jury would have been warranted in believing there was no permanent injury or serious injury. If the jury did believe this, then they could have returned a verdict against the appellant only for the actual damages sustained. They may, however, have believed that Mr. Kelly should be penalized for his acts, but if they did the appellant cannot be penalized by making it pay more than the jury thought the actual damage sustained by the plaintiff.
The court made no inquiry of the jury as to what their intention was. This could have been determined by the court simply interrogating the jury, but this was not done, and the result we get is that the court wrote a verdict for the jury, and we submit that he had no legal authority so to do. It is the duty of the jury to return verdicts into court, and if a verdict is irregular or not in legal form the jury should be instructed as to the proper form and should correct the verdict themselves and return it into open court. This is true even though the jury may have been discharged. The trial court had ample authority to reassemble the jury on the morning he wrote the verdict for them and let the jury correct the verdict and return it into open court.
27 R.C.L. 887; Secs. 605, 606, Code of 1930; Miss. Cent. R. Co. v. Roberts, 160 So. 604; Gillespie v. Olive Branch Bldg. Lbr. Co. et al., 164 So. 42.
H.T. Carter and Rodgers Prisock, all of Louisville, for appellee.
Under the law of Mississippi, which differs from some of the states where some of the opinions cited in the brief of appellant came, a constable is not only authorized to arrest a man committing a disturbance in his presence, but it is his duty to do so, and he is not excused simply because he arrests the wrong man; or arrests one Eaves boy when it is another Eaves boy that is making the disturbance. The law certainly does not excuse him simply because he makes the arrest on his wife's property rather than some other person's property, and this is true although he says he was also working for his wife.
Code of 1930, Secs. 632, 1224, 1226, 1227; Vice v. Holley, 88 Miss. 572, 41 So. 7.
Where a constable, while attempting to perform some duty of his office abuses or exceeds his authority or executes it in an unlawful manner to the injury of another his bond is liable. Read 35 Cyc. 1941-1942, and in Mississippi this means an assault and battery.
Carlisle et al. v. Village of Silver Creek, 37 So. 1015; Brown v. Weaver, 23 So. 388.
The fact that he struck and arrested the wrong man does not excuse him any more than if he had shot at Aubry Eaves, the young man who was drunk and disturbing the peace, and had hit J.D. Eaves, a young man who was not doing anyone any harm. This has been decided by our own court.
Vice v. Holley, 88 Miss. 572, 41 So. 7; 19 Cyc. 342.
L.C. Kelly's theory is that he not only didn't arrest him, but that he didn't strike J.D. Eaves, either as a constable or as an individual. He just didn't do it (he says); nevertheless, the jury believed he did strike J.D. Eaves, not only as an individual but while acting as constable and while arresting the appellee, J.D. Eaves.
The proposition that L.C. Kelly was not acting under color of his office was put to the trial judge, first in the form of a motion, then in form of instruction for the Maryland Casualty Company, and then at the end of the trial on motion to arrest the judgment, and the court having the testimony before him overruled all applications. Who could know better from the testimony whether or not the testimony showed "color of office or by virtue of office" than the trial judge? The presumption is that the matter was thrashed out on each motion, on each instruction, and on the attempt to arrest judgment, and the learned circuit judge evidently was well informed on so many attempts to extricate the Maryland Casualty Company, on this proposition.
Hinton et al. v. Sims et al., 158 So. 141; State for use of Johnson v. Cunningham, 65 So. 115.
In the case of Wallace v. State, 21 So. 662, the supreme court of Mississippi held that where an officer while attempting to make an arrest, struck a man with a pistol, knocking him down and knocking him insensible, was guilty of assault and battery in a criminal action. There are a great many cases on the proposition that an officer and his bondsmen are liable for useless assaults made on a prisoner while arresting him, but the case already cited by us of Carlisle v. Village of Silver Creek, reported in 37 So. 1015, seems to us to be exactly in point in this case at bar.
I believed the verdict of the jury clear enough, but in order that there be no question I made a motion to correct it at the bar, and which the court did in its judgment.
Sec. 571, Miss. Code 1930.
However, there was no actual necessity for any reformation or correction therein.
Code 1930, Secs. 601, 756; Cohea v. State of Miss. for use of heirs of Smith, 34 Miss. 179.
In the case at bar, the jury brought the only verdict into court it could have brought. The law fixes the liability of the appellant, and the court rendered the only judgment insofar as the Maryland Casualty is concerned it could have rendered. If there was an excess the plaintiff had a right to remit it under the statute, and if the excess (so called) as against L.C. Kelly, was erroneous, he did not appeal, and makes no complaint as to the judgment against him. Therefore, if the jury did intend to return a verdict against the Maryland Casualty Company in excess of its bond, it cannot complain of the court's action to its benefit as was said in the Cohea case above, 34 Miss. 179: "If the verdict was for too much, the defendants below cannot complain of what was for their benefit."
This is an action on this bond which resulted in a judgment against both Kelly and his surety, from which the surety only appeals.
In October, 1939, L.C. Kelly was a duly elected constable for District No. 1, Winston County, Mississippi, the surety on his official bond being the Maryland Casualty Company. Mrs. L.C. Kelly wife of the constable, owned and operated a cafe in the Town of Louisville, at which her husband and her son, Louie Kelly, were employed. On the night of October 7, 1939, the appellee went to this cafe, according to his testimony and that of his supporting witnesses, for the purpose of getting his brother, Aubrey Eaves, who was there drunk. While the appellee was standing at the cafe door, he saw Aubrey and beckoned to him. In response thereto, Aubrey came to the door staggering. The appellee then caught him by the arm, led him out into the road, or street, and was trying to persuade him to go home when L.C. Kelly, the constable, appeared and after saying, "J.D., you are under arrest," immediately struck the appellee with a pistol over one eye knocking him unconscious. The appellee was then carried by others, without interference from Kelly, to a physician's office, and no attempt was thereafter made by Kelly to take him into custody. The appellee says that his sight and hearing were injured.
According to the evidence for the appellant, Aubrey Eaves was not at the cafe on the occasion in question, and L.C. Kelly made no attempt to arrest and did not strike the appellee. While at the cafe, the appellee became drunk and disorderly and when Louie Kelly and another attempted to eject him from the cafe, he resisted, and Louie slapped him on the head with his left hand, knocking him down, but not unconscious. L.C. Kelly was not then present, but came to the scene immediately thereafter, and, "taking J.D. by the arm, carried him in the road and told him to go home."
One of the appellant's assignments of error is that the court below erred in not directing the jury to return a verdict for it. In support of this assignment the appellant says in effect that conceding the truth of appellee's version of what occurred, the appellant is not responsible therefor for the reason that Kelly was acting in an individual and not in an official capacity when he struck the appellee. Whether Kelly was attempting to arrest the appellee and therefore was acting in his official capacity must be judged from what he said and did. He had the right to make arrests without a warrant under some circumstances and the jury had the right to believe from the evidence that just before he struck the appellee he told him that he was under arrest and to infer therefrom that his purpose then was to take the appellee into his official custody. It is true that he did not consummate this purpose, but abandoned it when, but not until after, he had, according to the appellee's evidence, knocked the appellee unconscious. Cf. State v. Lightcap, 181 Miss. 893, 179 So. 880.
It is true that the appellee, according to the evidence, had done nothing to justify his arrest, and Kelly's attempt to make the arrest was unlawful, but that fact does not relieve the appellant of liability. Kelly had the right by virtue of his office to make arrests, and he claimed to be making an arrest — said that to the appellee which made it his duty to submit to an arrest by Kelly if lawful. Consequently, in attempting to make the arrest, though without actual right so to do. Kelly was acting under color of his office, State to use of McLaurin v. McDaniel, 78 Miss. 1, 27 So. 994, 50 L.R.A. 118, 84 Am. St. Rep. 618, and while there is authority to the contrary, the liability of the bondsmen of a public officer is not limited in this state to acts done by the officer virtute officii, but extends to illegal acts done colore officii. State, etc., v. McDaniel, supra; Lizana v. State, 109 Miss. 464, 69 So. 292, United States Fidelity G. Co. v. Yazoo City, 116 Miss. 358, 77 So. 152, L.R.A. 1918C, 395.
The penalty of Kelly's bond on which the appellant is surety is $1,000. The court below instructed the jury for the appellee that if they believe certain things "then you may within your discretion award to the plaintiff punitory damages as against L.C. Kelly," and by another instruction charged the jury that if it believed certain things, no element of punitive damages being enumerated, "then it will be your sworn duty to find for the plaintiff against the Maryland Casualty Company, not to exceed, the amount of its official bond which is the sum of $1000.00." The jury rendered the following verdict: "We, the jury, find for the plaintiff against L.C. Kelly and Maryland Casualty Company and assess his damages in the sum of $1500.00." The judgment rendered after setting forth this verdict proceeds:
"Whereupon the Plaintiff, J.D. Eaves, moved the court to correct the verdict to conform with law and testimony in the case and so as to hold the Maryland Casualty Company liable only for one thousand dollars ($1000), the extent of its bond, and the court, after having heard said motion, sustained it so as to hold the Maryland Casualty Company liable for the extent of its bond only, in the sum of one thousand dollars ($1000).
"It is now therefore the order of the court that the Plaintiff recover of the defendants, L.C. Kelly and the Maryland Casualty Company the sum of one thousand dollars ($1000) and have and recover of the defendant, L.C. Kelly, the additional sum of five hundred dollars ($500) with legal interest from this date until paid, also all cost to be taxed against the defendants, and that execution issue herein."
Had appellant sought in the court below to recover only actual damages, the judgment rendered by the court below would have been proper. For Kelly was liable for the whole of the damages awarded, and the appellant was liable therefor also up to, but not exceeding, $1,000. Cf. Cohea v. State, etc., 34 Miss. 179. The trouble here is that on the evidence the jury had the right to and probably did, include punitive damages in its award. Whether this is true, and if so what was the amount of the actual damages awarded, cannot be ascertained, and since the appellant is not liable for punitive damages (Lizana v. State, supra), the court should have caused the jury under a proper procedure therefor to clear up the verdict so that a correct judgment could be rendered against the appellant.
The judgment will be affirmed on liability, but will be reversed and the cause remanded for a new trial on the amount of damages only.
So ordered.