Gillikin v. United States Fidelity & Guaranty Co. , 254 N.C. 247 ( 1961 )

118 S.E.2d 606 (1961) 254 N.C. 247

C. T. GILLIKIN, Administrator of Louie Elmer Gillikin, Deceased, and Next of Kin to Louie Elmer Gillikin, Deceased,
v.
UNITED STATES FIDELITY & GUARANTY COMPANY OF BALTIMORE, MARYLAND.

No. 96.

Supreme Court of North Carolina.

March 8, 1961.

Charles L. Abernethy, Jr., New Bern, for plaintiff-appellant.

Claud R. Wheatly, Jr., and Thomas S. Bennett, Beaufort, for defendant-appellee.

RODMAN, Justice.

For the reasons given in Gillikin v. Springle, N.Car., 118 S.E.2d 611, plaintiff cannot recover because of the alleged conspiracy to defeat, by perjured testimony, his action for damages for the wrongful death of his intestate.

Certainly if he cannot recover against Springle personally for the alleged perjured testimony, no right of action can be maintained against Springle as coroner because of such perjured testimony.

In final analysis plaintiff's asserted right to recover in this action is predicated upon the assertion that Springle as coroner refused to hold an inquest.

Coroners are public officers. Art. IV of our Constitution relating to the judicial department of government provides, in sec. 24, for their election. Their duties are prescribed by c. 152 of the General Statutes. Sec. 7 of that chapter details their duties with respect to the holding and manner of conducting an inquest. That section is simply a statement of the historical function of a coroner. He is by that section commanded to make an investigation whenever it appears deceased probably came to his death by criminal act. He is not required to summon a jury unless satisfied from his personal investigation that death was the result of criminal conduct.

Plaintiff makes no assertion that his intestate died as a result of criminal conduct. He merely alleges that the death was the result of a negligent act of Springle's employee in taking more than his proper share of the highway. Negligence is not criminal unless culpable. State v. Phelps, 242 N.C. 540, 89 S.E.2d 132.

The duty of determining whether an inquest is necessary and the manner of conducting an inquest are judicial functions. State v. Knight, 84 N.C. 789. A judicial officer cannot be held accountable in an action for damages for the manner in which he performs his duties even though it be alleged that he acted corruptly and maliciously. Cunningham v. Dillard, 20 N.C. 485; Furr v. Moss, 52 N.C. 525; Phelps v. Dawson, 8 Cir., 97 F.2d 339, 116 A.L.R. 1343; Annotations, 173 A.L.R. 838; 30A Am.Jur. 50.

Since public policy prohibits an action for damages for a coroner's refusal to call an inquest, it follows that no right of action exists against the surety on his official bond.

The judgment dismissing the action is

Affirmed.

PARKER, J., concurs in result.