State Ex Rel. Cain v. Corbett , 235 N.C. 33 ( 1952 )

69 S.E.2d 20 (1952) 235 N.C. 33

STATE ex rel. CAIN et al.
v.
CORBETT et al.

No. 665.

Supreme Court of North Carolina.

February 1, 1952.

Clark & Clark, Fayetteville, for plaintiff appellant.

Leon D. Smith, Robert J. Hester, Jr., Elizabethtown, Nance & Barrington, Fayetteville, for defendants-appellees.

WINBORNE, Justice.

This appeal challenges the correctness of the ruling of the court below in sustaining the demurrers to the complaint on the ground that the complaint shows upon its face a misjoinder both of parties and of causes of action. Admitting for the purpose the truth of the allegations of facts contained in the complaint, as is done when testing the sufficiency of such allegations to withstand demurrer, and applying pertinent statutes, as interpreted in decisions of this Court, we conclude that the challenge is valid, and should be sustained.

At the outset it is noted that plaintiff, appellant, states, in his brief filed in this Court, that this is an action for false arrest and damages; and that while he does not allege or pray actual damages by reason of malicious prosecution, he does allege it together with ill treatment and make it in part the basis of his prayer for the award of punitive damages.

And on the other hand, defendants, appellees, state in their brief filed on this appeal: "It is not contended that there are not sufficient allegations in the complaint upon which to base either a suit for assault and false arrest, or a suit for malicious prosecution."

Hence it is appropriate to consider, first, the question as to whether there is a misjoinder of parties on the alleged cause of action for assault and false arrest. In this connection a sheriff is required by statute in this State, G.S. § 162-8, formerly C.S. 3930 as amended by 1943 Session Laws, Chapter 543, to execute two several bonds payable to the State of North Carolina, the second of which shall be not more than five thousand dollars, in the discretion of the board of county commissioners, and shall be conditioned that if he shall in all other things (than as specified) well and truly and faithfully execute said office of sheriff during his continuance therein, then the obligation to be void; otherwise to remain in full force and effect.

It is also provided by statute, G.S. § 109-3, that "Every * * * sheriff * * * and every other officer of the several counties who is required by law to give a bond for the faithful performance of the duties of his office, shall give a bond for the term of the office to which such officer is chosen."

It is further provided by statute, G.S. § 109-34, that "Every person injured by the neglect, misconduct, or misbehavior in office of any * * * sheriff * * * or other officer, may institute a suit or suits against said officer or any of them and their sureties upon their respective bonds for the due performance of their duties in office in the name of the state, without any assignment thereof; * * * and every such officer and the sureties on his official bond shall be liable to the person injured for all acts done by said officer by virtue or under color of his office."

Moreover, as declared by this Court in Styers v. Forsyth County, 212 N.C. 558, 194 S.E. 305, 308: "Under our law a deputy is authorized to act only in ministerial matters, and, in respect of these matters, he acts as vice-principal or alter ego of the sheriff, for the sheriff ``and his deputy are, in contemplation of law, one person.' * * * The acts of the deputy are acts of the sheriff. * * * For this reason, the sheriff is held liable on his official bond for acts of his deputy. * * * ``A sheriff is liable for the act or omission of his deputy as he is for his own.'" See also Borders v. Cline, 212 N.C. 472, 193 S.E. 826. Blake v. Allen, 221 N.C. 445, 20 S.E.2d 552, and Towe v. Yancey County, 224 N.C. 579, 31 S.E.2d 754.

And in the present case it is alleged that defendant, Allen, executed the sheriff's bond required of him as above shown, with defendant Maryland Casualty Company as his surety, and that defendant Thompson, as deputy sheriff, executed a bond to the Board of County Commissioners of Balden County, conditioned that he would well and faithfully perform all and singular the duties incumbent upon him by reason of his appointment to said office of deputy sheriff, with defendant Maryland Casualty Company as his surety.

Furthermore, it is well settled that where contract between parties is made for the benefit of a third party, the latter is entitled to maintain an action for its breach. Boone v. Boone, 217 N.C. 722, 9 S.E.2d 383, and cases there cited. See also Chipley v. Morrell, 228 N.C. 240, 45 S.E.2d 129, and Canestrino v. Powell, 231 N.C. 190, 56 S.E.2d 566, where additional cases are cited.

In the light of these statutes and principles of law, it appears that if the defendant Thompson were acting in the capacity of deputy sheriff at the time of the alleged assault and false arrest, he and the surety on his bond, and the Sheriff and the surety on his bond, would be proper and necessary parties to the action based on the cause of action for the alleged assault and false arrest.

But it is contended by defendants, appellees, that in this event the defendants Corbett would be improper parties. It is noted, however, that plaintiff alleges that Thompson was an employee of the defendants Corbett acting within the scope of his employment, and was at the same time a deputy sheriff of Balden County acting under color of his office. Therefore, whether at the time of the alleged assault and false arrest Thompson was acting in his capacity as servant or public officer is a question of fact for the jury. See Tate v. Southern R. R. Co., 205 N.C. 51, 169 S.E. 816, and Rhodes v. Asheville, 230 N.C. 134, 52 S.E.2d 371.

Thus the joining of the Corbetts will not be held to be a misjoinder. Indeed, if the plaintiff be in doubt as to persons from whom he is entitled to redress, he may join two or more defendants, to determine which is liable. G.S. § 1-69.

By these same principles, and for like reasons, all the defendants are proper and necessary parties to the alleged cause of action for malicious prosecution.

Therefore this Court is constrained to hold that there is no misjoinder of parties to this action, whether it be considered on the cause of action for assault and false arrest, or on the cause of action for malicious prosecution.

We now come to this question: Do the allegations of the complaint constitute a misjoinder of causes of action? While the allegations of the complaint may be susceptible of being interpreted as stating two causes of action, one for false arrest, and the other for malicious prosecution, and while in the main the respective allegations are separate paragraphs, patently no attempt is made to state separate causes of action as required by statute, G.S. § 1-123. King v. Coley, 229 N.C. 258, 49 S.E.2d 648.

Plaintiff does not seek relief by way of actual damages on account of malicious prosecution. And he expressly declares in this Court that "this is an action for false arrest and damages". Manifestly if there were doubt as to the cause or causes of action alleged, this statement constitutes an election of remedies. Hence we hold that there is stated only one cause of action. Compare Caudle v. Benbow, 228 N.C. 282, 45 S.E.2d 361.

Reversed.