Opinion
14581
December 10, 1937.
Before JOHNSON, J., Hampton, July, 1937. Affirmed.
Action by Dave Into against Georgia Cypress Company and others. From an order denying his motion for a change of venue, the defendant, J.H. Zeigler, appeals.
The order of Judge Johnson follows:
A motion for an order asking that the place of trial of this case be transferred to Jasper County, made by the defendants, was heard before me at chambers at Allendale, S.C. on July 30, 1937. H. Klugh Purdy, Esq., appeared as attorney for the defendants, and Hugh O. Hanna, Esq., and J.R. McCall appeared for the plaintiff.
The motion requesting order for change of venue was made by the defendants on the ground that "the county designated in the complaint is not the proper county, due to the fact that it is brought against the defendant, J.H. Zeigler, a public officer, for acts committed by him, by virtue of his office, and in his official capacity, and that said acts were committed in Jasper County."
The motion was made upon the pleadings and affidavits attached thereto.
Defendants based their motion upon the ground stated and upon Sub-section (2) of Section 421, 1932 Code of Laws, which reads as follows:
" § 421. Actions to be Tried Where Cause of Action Arose. — Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the like power of the Court to change the place of trial: * * *
"(2) Against a public officer, or person specially appointed to execute his duties, for an act done by in virtue of his office, or against a person who by his command or in his aid, shall do anything touching the duties of such officer."
The attorneys for plaintiff, in argument, pointed out that with reference to the defendant, J.H. Zeigler, the allegations of the complaint were against him individually, and that no allegation in the complaint was made against him as game warden, or as an officer of the law, and they took the position, first, that, even if J.H. Zeigler and his bond is liable, individually, and as game warden and an officer of the law, they had elected to look to J.H. Zeigler only and individually and had the right to sue him as joint tort-feasor in the County of Hampton in which he lived, together with the other defendants, and, second, that, under the circumstances, the bond of J.H. Zeigler and J.H. Zeigler would not be liable as game warden under the allegations and circumstances of this case in that, at the time of the tort alleged in the complaint, the said J.H. Zeigler was not acting by virtue of his office and in his official capacity, and was not engaged in the enforcement of any game law of the State, and, further, that the acts he committed were done without any authority of law whatsoever and were done in a bald assumption and usurpation of authority, without process or authority of any kind.
For the purpose of this motion, it was conceded that the allegations of the complaint and the affidavits must be accepted as true and correct.
The action is against the defendants for unlawful arrest and false imprisonment.
In brief, the complaint alleges that Isaiah Floyd was agent in charge and woods rider of Georgia Cypress Company, a corporation which owned lands on or near the Savannah River in Jasper County, S.C. and that Beck's Ferry is a public landing situated on said tract of land; that plaintiff had obtained permission from Isaiah Floyd, agent for said company, to enter upon said lands for the purpose of fishing and had left his boat at said public landing; that on October 11, 1936, plaintiff was driving his mule and jersey wagon on the public road to Beck's Ferry for the purpose of transporting his boat away from said landing to his home and at said time he was not engaged in fishing or hunting; that the defendants, Isaiah Floyd and J.H. Zeigler, approached him and unlawfully restrained him of his liberty and falsely arrested him and cursed and abused him.
The affidavit of J.H. Zeigler states that he was game warden appointed from Hampton County and, under instructions from the Chief Game Warden, had gone into Jasper County to assist in the enforcement of the game laws; that he went to Beck's Ferry in the County of Jasper and heard a person shooting in the Savannah River swamp; that Beck's Ferry is on the edge of the swamp; that he found the plaintiff on the hill near the ferry and told him not to give any alarm to the hunter, and left a person with him to keep him from giving an alarm to the hunter, or leaving to notify the hunter that a game warden was after him; that the hunter in the swamp was a brother of said Dave Into and was captured and convicted for trespass; that his acts were done in his official capacity as game warden and in enforcing the game law. Affidavit of H. Klugh Purdy is to the effect that he requested the Chief Game Warden to send J.H. Zeigler to Jasper County to assist in the enforcement of the game laws.
Affidavit of J.H. Zeigler does not state that the plaintiff was endeavoring to give any alarm and simply states that he found the plaintiff on the hill near the ferry. Affidavit of Zeigler, further, does not allege that the plaintiff had violated any game law or was in the act of violating any game law. Affidavit further sets out that the brother of Dave Into was convicted for trespass (evidently upon the private lands of Georgia Cypress Company).
The complaint of plaintiff says he was on the public road, proceeding to the ferry to obtain his boat and that the defendants were without process.
The following quotation is taken from the case of Wieters v. May, 71 S.C. 9; 50 S.E., 547, 548, 549.
"When a suit is upon the bond against the constable and his sureties, the extent of the liability is to be ascertained from the terms of the bond, strictly construed, so as not to extend the liability of a surety by implication beyond its terms, but also reasonably construed, so as not to defeat the purpose of requiring sureties for the protection of the public against official misconduct. The bond cannot cover any act or omission of a constable done without any authority of law whatever, or in his private or personal capacity as man or citizen, but it protects alone for what he does or omits to do unlawfully in the execution of his office or some official duty imposed by law. This is shown in our cases with reference to liability on bonds of sheriffs and ordinaries. In the case of State v. White, 442, sureties on bonds of an ordinary were held not liable for funds received by him as ordinary without authority of law. The same rule was enforced in State ex rel. Elliott v. Jeter, 59 S.C. 483, 38 S.E., 124, wherein it was held that sureties on the official bond of a probate judge were not liable for funds coming into his hands from sales in partition made since November 27, 1878, as a Probate Court had no jurisdiction to make such sales. In the case of Allen v. Ramey, 4 Strob., 30, the sureties of a sheriff were not liable for printer's fees which the sheriff collected or failed to collect, and refused or neglected to pay over, on the ground that it was not the official duty of a sheriff to collect such fees of a printer; it being a matter of private contract between the sheriff, as an individual, and the printer. In the case of Treasurers v. Buckner, 2 McMul., 323, the Court held the sureties on a sheriff's bond liable for fees improperly collected, and in that case the Court stated the following rule: `Whatever, in the execution of his office or in the character of a public officer properly recognized, the sheriff may do or omit whereby damage results to another, seems to be a violation of the duties of his office, and the damage proved may be recovered under the bond.' The sheriff had authority to collect fees, but abused or exceeded his authority by exacting fees in excess of what was allowed by law. But in the same case, entitled as Treasurers v. Buckner, 2 McMul. [323], 326, the rule is more fully stated as follows: `Where a sheriff has no process giving him authority to receive, a person who pays to his deputy cannot look to him. Chiles v. Holloway, 4 McCord, 164. And if one, deceived by no show of authority, should pay to J.S. himself, then being sheriff, that which a sheriff had no authority to receive, his recourse would be to J.S. personally, and not to the sheriff's bond. But where a sheriff having writs which authorize him to collect, exacts from the debtor more than can lawfully be required, even without levy, the payment is not voluntary. Levy v. Roberts, 1 McCord, 395; Murray v. Moorer, Cheves, 111, 113. And the sheriff, either wilfully abuses his office, or negligently or unskillfully performs his duty, so as to violate the condition of his official bond.' * * *
"Not only do Courts differ as to liability of sureties for acts colore officii, but, among those authorities which agree that such acts are covered by the obligation of the bond, the most widely divergent views are entertained as to what constitute acts colore officii, within the meaning of the definition.
"The lawful acts of an officer, of course, can create no liability whatever; but if an officer, a State constable, while attempting to execute 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. To illustrate: If a State constable, in an attempt to discharge a duty of his office, in the seizure of contraband liquor or the arrest of one openly violating the Dispensary law, should, without just excuse, commit an assault and battery, or if, in overcoming resistance, he should so exceed his duty as to become the aggressor in an assault and battery, to the injury of another, then there is liability upon his bond. But an assault and battery committed by a constable under a bald assumption and usurpation of authority, without process or authority of any kind, would not be covered by the terms of his bond. These conclusions are not only the result of our own cases, but are supported by the general trend of authority in other jurisdictions, among which we cite the following: [Authorities cited.]"
The principle announced in this case is followed in the case of Brooks et al. v. U.S. Fidelity Guaranty Co., 161 S.C. 66, 70; 159 S.E., 488, 489. In re Wells et al., Snyder et al. v. Scott et al., 174 S.C. 403, 406; 177 S.E., 665, 666.
Upon consideration of the pleadings and after hearing arguments pro and con, it is ordered that the motion for change of venue be, and the same hereby is, denied.
Mr. H. Klugh Purdy, for appellant, cites: Venue: Sec. 421, Code 1912; 72 S.C. 572; 52 S.E., 646; 25 S.C. 385.
Messrs. J.R. McCall and Hugh O. Hanna, for respondent, cite: Acts of officer in official capacity: 72 S.C. 672; 52 S.E., 606; 71 S.C. 8; 50 S.E., 548; 22 R.C.L., 506; 46 C.J., 1043; 31 S.C.L., 27; 44 Am. Dec., 271.
December 10, 1937. The opinion of the Court was delivered by
The plaintiff sued the defendants in Hampton County for damages. The defendant, Zeigler, on the ground stated in the Court's order, moved for a change of venue to Jasper County. The motion was refused, and this appeal followed.
We are satisfied from the careful examination of the record, that Judge Johnson was correct in holding that the acts stated and described in the complaint and the affidavits, the papers on which the motion was heard, were not official acts of the officer, and we approve the result of the Court's decree.
The order appealed from, therefore, which will be reported, is affirmed.
MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.