Opinion
(Filed 27 September, 1939.)
APPEAL by plaintiffs from Rousseau, J., at February Regular Term, 1939, of RUTHERFORD. Affirmed.
Jake F. Newell, John A. McRae, and B. F. Wellons for plaintiff.
Johnson Uzzell for defendant, the Fidelity Casualty Company of New York, Inc.
This is a tort action brought by plaintiff against the defendants, J. Cal Williams, sheriff of Rutherford County, Horace Nealon, deputy sheriff and jailer of Rutherford County, and the Fidelity and Casualty Company of New York, Inc.
The defendant Surety Company demurred to the complaint as follows: "(1) That the complaint upon its face fails to state and allege a cause of action against the said defendant. (2) That the plaintiff in the complaint attempts to assert a cause of action against the defendant, the Fidelity Casualty Company of New York, on account of the alleged wrongful and criminal conduct of Horace Nealon, a deputy sheriff appointed by J. Cal Williams, sheriff of Rutherford County, and attempts to assert a cause of action against said defendant by virtue of the liability created under Policy No. 1576124, a copy of which is attached to the complaint, but this demurring defendant avers that said bond creates no liability on account of the wrongful and criminal conduct of either its principal, J. Cal Williams, or his deputy, Horace Nealon. (3) That if the defendant, Horace Nealon, committed the crime referred to and described in the complaint, this demurring defendant, the Fidelity Casualty Company of New York, Inc., is not liable to the plaintiff on account thereof under the terms of the official bond which it executed for J. Cal Williams, sheriff of Rutherford County, copy of which is attached to the complaint in this cause."
The judgment of the court below is as follows: "This cause coming on to be heard, and being heard before his Honor, J. A. Rousseau, Judge presiding at the February Term, 1939, of the Superior Court of Rutherford County, upon the demurrer herein filed by the defendant, the Fidelity Casualty Company of New York, Inc., and upon consideration of said demurrer and the argument of counsel, the court being of opinion that the complaint does not allege a cause of action against said defendant, and for that reason defendant is entitled to have the demurrer sustained: It is therefore considered and adjudged by the court that the demurrer filed by said defendant, the Fidelity Casualty Company of New York, Inc., be and the same is hereby sustained, and as to said defendant the action is dismissed. J. A. Rousseau, Judge Presiding."
The plaintiff appealed to the Supreme Court and makes as her only assignment of error the signing of the judgment appearing in the record.
We do not think the Surety bond covers the tort complained of by plaintiffs. The present case is governed by Davis v. Moore, 215 N.C. 449.
The judgment of the court below is
Affirmed.