Opinion
No. 40817.
May 19, 1958.
1. Officers — assault and battery — evidence — presented jury question as to whether assault was committed by officer while acting under color of office.
In action against policeman and surety on his official bond for alleged wrongful assault by policeman, evidence presented a jury question as to whether assault and battery was committed by officer while acting under color of office.
2. Principal and surety — liability of surety on an official bond extends to illegal acts done under color and pretense of office.
Liability of a surety on an official bond is not limited to acts done by officer by virtue of office, but extends to illegal acts done under color and pretense of office.
3. Assault and battery — officers — sureties — instruction submitting issue of punitive damages as against surety on officer's bond — error.
Where action was brought against municipal policeman and surety on his official bond for alleged wrongful assault on plaintiff, the instruction to the effect that if jury believed that defendant policeman acted willfully in striking plaintiff, then in its discretion it could assess punitive damages by way of punishment to the defendants was error.
4. Principal and surety — sureties on official bonds not liable for punitive damages in absence of statute.
In absence of statute, sureties on official bonds are not liable for punitive or exemplary damages.
5. Damages — assault and battery — officers — an award of punitive damages against policeman for wrongful assault was proper.
Where action was brought against municipal policeman and surety on official bond for alleged wrongful and willful assault on plaintiff, an awarding of punitive damages as to policeman was proper.
6. Instructions — subrogation — instruction properly refused — not relevant to issue in the case.
In such action, Trial Court properly refused instruction that surety company was not liable unless policeman was first liable and that if company was required to pay any part of the judgment then policeman would be obligated to reimburse company for that amount, since it was not an issue in the case and not relevant to policeman's liability.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Perry County; FRANCIS T. ZACHARY, J.
M.M. Roberts, Hattiesburg; Sidney B. Majure, Richton, for appellants.
I. Cited and discussed the following authorities: Atkinson v. Dixie Greyhound Lines, Inc., 143 F.2d 477; Brabham v. State of Miss. for Use of Smith, 97 F.2d 251; C. R. Stores, Inc. v. Scarborough, 189 Miss. 872, 196 So. 650; Gulf, Mobile Ohio RR. Co. v. Smith, 210 Miss. 768, 50 So.2d 899; Illinois Cent. RR. Co. v. Weinstein, 99 Miss. 515, 55 So. 48; S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; Lizana v. State for Use of Kelly, 109 Miss. 464, 69 So. 292; Maryland Cas. Co. v. Eaves, 188 Miss. 872, 196 So. 513; Pickens v. State, 61 Miss. 563; Taggard v. Peterson, 182 Miss. 82, 181 So. 137; Vicksburg Jackson RR. Co. v. Patton, 31 Miss. 156; Secs. 255, 257, 1697, Code 1942.
Quitman Ross, E.K. Collins, Laurel, for appellee.
I. Cited and discussed the following authorities: Taggart v. Peterson, 182 Miss. 82, 181 So. 137; Maryland Cas. Co. v. Eaves, 188 Miss. 872, 196 So. 513; Lizana v. State, 109 Miss. 464, 69 So. 292; Anderson v. Jenkins, 220 Miss. 145, 70 So.2d 535; Vicksburg Jackson RR. Co. v. Patton, 31 Miss. 156; Gulf Rfg. Co. v. Myrick, 220 Miss. 429, 71 So.2d 217; Brooks v. State (Miss.), 52 So.2d 616; C. R. Stores v. Scarborough, 189 Miss. 172, 196 So. 650; Wise v. Cobb, 135 Miss. 673, 100 So. 189; Sikes v. Thomas, 192 Miss. 647, 7 So.2d 527; Rawson v. Blanton, 204 Miss. 851, 35 So.2d 65; Graham v. Swinney, 174 Miss. 579, 165 So. 438; Sec. 1988, Code 1942.
This is a suit by appellee Shoemake against a municipal policeman, Vanderslice, and the surety on his official bond, United States Fidelity Guaranty Company, for damages for an alleged wrongful assault upon Shoemake by the policeman. The jury returned a verdict against both defendants in the amount of $5,000, and judgment was entered thereon.
In February 1957 Vanderslice was a policeman in the Town of Richton. Shoemake was working for Milton Shows, loading vegetables at a central market on the trucks of various buyers. Vanderslice was on night duty. Late that night he ordered Shoemake to leave and go home. Vanderslice testified that Shoemake was drunk, but the latter denied that. Shoemake continued working, and left around 2 A.M. He got in his truck which was driven by a boy named James McGill, and was talking to Shows, who had the right front door of the truck partly open, when Vanderslice came up to the truck and hit Shoemake on the head with a blackjack four or five times. Shows remonstrated with the policeman, and McGill drove the truck away with Shoemake in it. This was appellee's version. Later that night, before Shoemake left town, Vanderslice said that he arrested Shoemake on a charge of public drunkenness. He was held in the jail for about thirty minutes, but was then released, without any charge being made or prosecuted, upon the direction of the chief of police. Appellee denied he was arrested that night. Vanderslice denied that he hit plaintiff while in the truck. He said Shoemake was very drunk, and at the loading shed that night plaintiff cursed him, threatened him with an opened knife, and that he then knocked the knife out of his hand and hit him with his blackjack in order to arrest him.
(Hn 1) The appellants were not entitled to a peremptory instruction. The jury was warranted in concluding that the assault and battery was committed by the officer while acting under color of his office, and that Vanderslice's acts were not purely private and personal. (Hn 2) The liability of a surety on an official bond is not limited to acts done by the officer by virtue of his office, but extends to illegal acts done under the color and pretense of his office. State, ex rel. McLaurin v. McDaniel, 78 Miss. 1, 27 So. 994 (1900); U.S.F. G. Co. v. Yazoo City, 116 Miss. 358, 77 So. 152 (1917); Pierce v. Chapman, 165 Miss. 749, 143 So. 845 (1932). Cf. Maryland Casualty Co. v. Eaves, 188 Miss. 872, 196 So. 513 (1940).
(Hn 3) Appellee was granted an instruction by the trial court that if the jury believed that defendant acted willfully in striking plaintiff, then in its discretion it could assess punitive damages "by way of punishment to the defendants." This was error as to the surety company, (Hn 4) since in the absence of a statute sureties on official bonds are not liable for punitive or exemplary damages. Lizana v. State, ex rel. Kelly, 109 Miss. 464, 69 So. 292 (1915); Maryland Casualty Company v. Eaves, supra. The jury probably awarded punitive damages against the surety. (Hn 5) They were proper as to Vanderslice. Hence the case will be reversed and remanded as to the surety company for a new trial on the issue of damages only.
(Hn 6) It is contended that the trial court erroneously refused a requested instruction which advised the jury that the surety company would not be liable for anything unless Vanderslice is first liable and that, if the company is required to pay any part of the judgment, then the individual defendant will be obligated to reimburse the company for that amount. If a surety pays a judgment, it is subrogated to the rights of the plaintiff. Miss. Code 1942, Sections 255, 257. However, that is not an issue in this case. The jury's task was to determine whether Vanderslice was liable, and, if so, to properly assess plaintiff's damages. The requested instruction is not relevant to either of those issues. The trial court properly refused it.
Affirmed as to appellant Vanderslice, and, as to appellant United States Fidelity and Guaranty Company, affirmed on liability and reversed on issue of damages only.
Roberds, P.J., and Lee, Arrington and Gillespie, JJ., concur.