Opinion
Filed 23 September, 1953.
Principal and Surety 5a — A bond executed to a county alcoholic beverage control board indemnifying insured against loss of money or personal property and covering the employees of the board, but not executed by any of such employees, cannot render the surety liable to a third person for a tort committed by all employee of the board in the discharge of his duties, and since the bond does not purport to be in any sense a peace officer's performance bond, G.S. 128-9, the provisions of that statute may not be incorporated into the contract under the doctrine of aider by statute.
APPEAL by plaintiff from Bone, J., May Term, 1953, of BEAUFORT.
LeRoy Scott and John A. Wilkinson for plaintiff, appellant.
Rodman Rodman for American Surety Corporation, appellee.
Civil action to recover of Beaufort County Alcoholic Beverage Control Board, William A. Patrick, one of its enforcement officers, and National Surety Corporation damages for an alleged assault and battery upon the plaintiff.
The plaintiff's evidence discloses that on the night of 15 June, 1951, he was walking along a woods path near his home in Pitt County looking for his cow, when suddenly someone near the path hollered at him, "Halt, Claude." The plaintiff, being startled, broke and ran. He was pursued by the defendant Patrick who shouted again, "Halt, Claude," and at that time shot the plaintiff in the leg, and again in the hip after he had fallen. The plaintiff further testified: "Mr. Patrick then jumped astraddle of me . . . and said, `What in the Hell you doing out here, Claude?' I replied, `This ain't Claude.' Then he wanted to know who I was and where I lived."
The defendant Patrick was employed by the Beaufort County ABC Board as an enforcement officer and had been sent to Pitt County by his superiors, as permitted by G.S. 18-45 (o), to assist the officers of that county in raiding an illicit liquor still.
Under date of 20 July, 1940, the defendant National Surety Corporation issued a blanket indemnity contract covering the employees of the Beaufort County ABC Board. To this contract a rider was attached covering William A. Patrick for an annual period including 15 June, 1951, in the principal sum as to Patrick of $1,250, in consideration of the payment of an annual premium of $5.
The pertinent provisions of the contract are:
"INDEMNITY SECTION — ACTS COVERED: . . . NATIONAL SURETY CORPORATION hereinafter called the Underwriter, in consideration of an annual premium, hereby agrees to indemnify BEAUFORT COUNTY ALCOHOLIC BEVERAGE CONTROL BOARD of Washington, N.C., hereinafter called the Insured, to the extent and upon the terms and conditions specified by this bond, against any loss of money or other personal property, belonging to the Insured or for which the Insured is legally liable, caused by larceny, embezzlement, forgery, misappropriation, wrongful abstraction or wilful misapplication or any other fraudulent or dishonest act or acts committed by any of the Insured's employees while covered under this bond."
At the close of the plaintiff's evidence, judgment of involuntary nonsuit was entered in favor of all defendants except William A. Patrick. Exception by plaintiff. The jury returned a verdict in favor of the plaintiff and against the defendant Patrick in the sum of $2,000, and judgment was entered thereon. The record discloses that execution on this judgment has been returned unsatisfied.
From the judgment as of nonsuit entered at the close of the plaintiff's evidence, he appeals.
The plaintiff concedes in this Court that the judgment as of nonsuit was properly entered as to the Beaufort County ABC Board. He insists, however, that the trial court erred in dismissing the case as to the defendant National Surety Corporation.
Thus, the appeal presents this single question: Does the indemnity contract in suit cover liability for the alleged assault and battery committed by enforcement officer Patrick? The record impels a negative answer.
By the terms of the contract the Surety Corporation agrees "to indemnify Beaufort County Alcoholic Beverage Control Board . . . against any loss of money or other personal property, belonging to the Insured or for which the Insured is legally liable, caused by larceny, embezzlement, . . . or any other fraudulent or dishonest act or acts" of the defendant Patrick.
The contract is not conditioned "for the faithful performance" of the duties of enforcement officer Patrick as a peace officer as required by G.S. 128-9. In fact, the instrument is not executed by Patrick or any of the covered employees of the Board. At most the contract is one of indemnity, in the nature of a fidelity bond, and in no sense does it purport to be a peace officer's performance bond as required by G.S. 128-9. Accordingly, the terms of that statute, requiring peace officers to give bond for the faithful performance of their duties as such, may not be treated as being incorporated in the instant contract on the theory that the statute was within the contemplation of the parties and that they intended to include the conditions thereof in the contract. The doctrine of aider by statute, recognized in Dunn v. Swanson, 217 N.C. 279, 7 S.E.2d 563, and Price v. Honeycutt, 216 N.C. 270, 4 S.E.2d 611, does not cover the factual situation here presented. See also 43 Am. Jur., Public Officers Sec. 406; Annotation 109 A.L.R. 501. The cases from other jurisdictions relied on by the appellant, including Holland v. American Surety Company, 149 Fla. 285, 6 So.2d 280, 140 A.L.R. 1451, are factually distinguishable, and are not considered as controlling here.
The judgment as of nonsuit below is sustained under authority of Midgett v. Nelson, 214 N.C. 396 199 S.E. 393, and cases there cited. See also 67 C.J.S., Officers, Sec. 161; Salisbury v. Lyerly, 208 N.C. 386, 180 S.E. 701. Cf. Jordan v. Harris, 225 N.C. 763, 36 S.E.2d 270.
On this record, we are not concerned with other remedies available to the plaintiff. See G.S. 128-9.
Affirmed.