197 S.E. 360 | W. Va. | 1938
This action in debt was brought in the name of the State of West Virginia for the use and benefit of Leo James Brown (hereinafter designated as plaintiff) against George O. Spangler, principal, and the Fidelity and Casualty Company of New York, surety, on a bond for the faithful performance, by the principal, of his duties as town sergeant of the town of Ridgeley. To a judgment for plaintiff in the amount of $1,000.00, based upon a jury verdict, the surety prosecutes error. *74
The declaration alleges, among other things, that Spangler was appointed and qualified as chief of police and town sergeant of the town of Ridgeley; that he gave a bond, in the amount of $3,500.00, with the Fidelity Casualty Company of New York as surety, for the faithful performance of such duties as may be imposed upon him by law, and the accounting for all money which may come into his hands; that by virtue of Code 1931,
The surety company interposed a demurrer to the declaration, assigning a number of general grounds in support thereof. It is apparent from a careful reading of the declaration and the demurrer that the demurrer is bottomed in chief on the fact that the action was brought by the State for the use and benefit of Leo James Brown, whereas, the covenant of the bond reads that the said Spangler and surety "are held and firmly bound unto The State of West Virginia, for the use of the town of Ridgeley." The trial court overruled the demurrer. The surety company then moved for a bill of particulars, and in response to the motion, the plaintiff filed what purports to be a bill of particulars, which, in fact, is a reiteration of the allegations of the declaration. *75
On January 6, 1936, the defendant, George E. Spangler, then the town sergeant and chief of police of the town of Ridgeley, went to plaintiff's home in the town, and without a warrant, entered the same, arrested the plaintiff and took him to Cumberland, Maryland, where he was held for a period of twenty-two hours before being released. Spangler justified his action on the ground that the Cumberland police directed him to make the arrest, though the record discloses that the arrest was not made pursuant to any proceeding had against the plaintiff and without any warrant having been issued, either by the West Virginia authorities or those of the city of Cumberland. The evidence is in conflict as to how the arrest was made. Plaintiff and his witnesses say that Spangler entered the house through the kitchen door and commanded plaintiff to come with him; that, upon the command being refused, without any threatening action on plaintiff's part, Spangler drew his pistol, pointed it at plaintiff and by the threat thereof caused the latter to submit to arrest. On the other hand, Spangler testified that when he asked plaintiff to come with him, plaintiff picked up a coal shovel, threatened to strike witness with it, and witness did not draw his pistol until confronted by plaintiff's threatening action. The evidence, on behalf of the plaintiff, is to the effect that there was no coal shovel in the house, and that Spangler's testimony as to plaintiff's resort to a coal shovel in resistance of arrest was without verity. There is also a conflict as to whether or not at the time of the arrest Spangler was intoxicated. The constable who accompanied Spangler to plaintiff's residence, and other witnesses, testified that Spangler was drunk, and competent evidence was likewise introduced, which, taken by itself, would indicate that Spangler was sober. Be that as it may, the conflict in the evidence in this case may be brushed safely aside with the statement, which we think sound under all the circumstances, that it was solved by the jury verdict in plaintiff's favor.
We are persuaded that the solution in this case, both *76
on the rulings of the court on the demurrer and the motion to set aside the verdict, to a large extent, centers upon the question as to whether or not this action, inasmuch as the bond reads in the name of the State of West Virginia for the use of the town of Ridgeley, should have been brought in the name of the town, as contended for by counsel for the surety company, or whether it was properly brought in the name of the State of West Virginia for the use of the plaintiff. The bond, being conditioned for the faithful performance by Spangler of his official duties, and the accounting for all money which may come into his hands, is, in every sense of the word, an official bond. Code,
In this state an officer with authority to conserve the peace, may, without a warrant, arrest any person who he, upon reasonable grounds, believes has committed a felony, though it afterwards appears that no felony was actually perpetrated.Allen v. Lopinsky,
In view of the foregoing principles, did Spangler have reasonable ground to believe that a felony had been committed? The evidence on this issue is very meager. Spangler says "I was asked by the Cumberland authorities to pick up Mr. Leo Brown and William Rowe and bring them to Cumberland for questioning." He also testified that he informed Brown "I have been asked to pick you up for questioning in connection with the American Store robbery in Cumberland." And on cross-examination, this witness stated: "I told Mr. Brown and Rowe both they were under suspicion in Maryland for a robbery and they were wanted for questioning by the Maryland authorities." Defendants' counsel asked Spangler the bald and leading question: "Who gave you the information these people were wanted for burglary *79 of the American Store?" To which witness replied: "City detective Cubbage, of Cumberland." This question was without proper basis and has, together with the answer, no evidentiary value. In fact, no official or police officer of the city of Cumberland was called as a witness to show that the plaintiff was arrested for a felony at the request of an officer of said city. The Mr. Cubbage who, Spangler claims, made the request was not called as a witness. So we are left to the foregoing testimony to determine whether Spangler had reasonable grounds for the arrest. As we read the evidence, it is not sufficient to show that Spangler had reasonable grounds to believe that the plaintiff Brown had committed a felony.
The surety company's counsel assigns as error improper remarks by plaintiff's attorney made in the presence of the jury. In counsel's brief, reliance seems to be had only upon a remark claimed to have been made by one of plaintiff's counsel in his opening argument that the surety company "made its living by going on bonds" and should be made to make them good, and a remark made in the closing argument to the effect that "it was the surety company they were after" and that they "did not care for Spangler, because he didn't have anything." Whether these remarks were made does not appear of record. The only suggestion to that effect was contained in the motion of counsel for a mistrial. Not being a part of the record, they, of course, are not entitled to consideration. In addition, counsel cannot take advantage of the claimed error for the reason that the motion for a mistrial was not promptly made, and for the further reason that the surety company is a party defendant, and its liability is involved in the instant case, so that, to that extent, these remarks are not analogous to the introduction of evidence or the remarks of counsel in damage cases to the effect that the defendant has insurance. In the latter class of cases, such matters are foreign to the issue, and clearly prejudicial. In the instant case, the remarks, even if improper, are within the scope of the record, and do not constitute prejudicial error. *80
The surety company assigns as error the giving of plaintiff's instructions Nos. 1, 2, 3, 4 and 6, and the refusal of defendants' instructions A and Nos. 1, 2, 3, 5 and 7. It would be unprofitable to review in detail all the instructions given and refused. Suffice it is to say that the instructions offered by both sides, which were given, properly presented to the jury plaintiff's and defendants' respective theories of the case. Clearly, the refusal of defendants' instructions was not erroneous. Instruction A was for a directed verdict; No. 1, to the effect that damages must be proved and not presumed, whereas, the plaintiff clearly proved the damages suffered by him; No. 2, to the effect that if Spangler's conduct was indiscreet, such should be considered in mitigation of damages, whereas, the evidence shows that Spangler, having made a false arrest, without warrant, was not merely indiscreet, but was acting beyond his authority and legal rights; and No. 3, to the effect that the plaintiff has the burden of proving the loss he suffered and the amount, whereas, having been arrested falsely, he, without doubt, suffered damages, the amount of which was to be fixed by the jury, and could not be particularized by the plaintiff in dollars and cents. The two remaining instructions are likewise without evidence to support them, No. 5 being premised upon the surrender by plaintiff without protest, a happening which did not occur, according to the evidence on both sides; and No. 7, upon the erroneous assumption that there was evidence tending to show that Spangler had reasonable ground to suspect that plaintiff had committed a felony.
The objection to the bill of particulars is not well taken. True, it reiterates the material allegations of the declaration. However, the declaration clearly alleges the wrongful actions upon which the plaintiff relies. The damages incurred are necessarily of an indefinite nature, and the amount and items thereof could not be furnished. Therefore, the bill of particulars, setting forth, as it does, the material facts upon which the plaintiff relied, is *81 sufficient, and the trial court did not err in refusing to require a more detailed bill of particulars.
The foregoing, we think, disposes of all the assignments of error which have any basis for consideration. From a careful review of all the assignments in conjunction with the record, we entertain the opinion that the trial court did not err, and therefore, the judgment should be affirmed.
Affirmed.