Langley v. Patrick

238 N.C. 250 | N.C. | 1953

Johnson, J.

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 Gr.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 peace1 officers to give bond for the faithful performance of their duties as such, may not be treated as being incorporated in tbe instant contract on tbe theory that tbe statute was within tbe contemplation of tbe parties and that they intended to include tbe conditions thereof in tbe contract. Tbe 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 tbe factual situation here presented. See also 43 Am. Jur., Public Officers, Sec. 406; Annotation 109 A.L.R. 501. Tbe eases from other jurisdictions relied on by tbe 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.

Tbe 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 tbe plaintiff. See G.S. 128-9.

Affirmed.