CHARLESTON.

#### McGinnis Hatfield, *Sheriff, etc. v.*C. C. Hutton *et al.*

(No. C. C. 418)

Submitted April 9, 1929.

Decided April 16, 1929.

*231
      *Taylor & Taylor,*for plaintiff.

*Jos. M. Crockett,*for defendant.

Woods, PresideNt :

This action was brought at the relation of Cecil Lusk for damages arising from an alleged breach of a bond, given the sheriff of McDowell county by C. C. Hutton, a tax collecting deputy, as principal, and J. W. Blakely, Agent, as surety. The declaration contains two counts. Each sets out the bond in *haec verba,*and is drawn on the theory that that portion of section 7, Chapter 148, West Virginia Cumulative Statutes, 1925, providing that regularly elected sheriffs, regularly appointed deputies, etc., shall be liable upon their said official bonds, for the damages done by the *unlawful or careless*use of any pistol or revolver, whether such bond is so conditioned or not, *ex proprio vigore*became and was an added condition to said bond, though unexpressed therein. *Hatfield*v. *Wyatt,*99 W. Va. 604. Though inaptly drawn, each count, in substance, alleges that the said deputy, while Lusk was travelling in a peaceable and lawful manner upon one of the highways of the county wherein Hutton was a tax collecting sheriff, stopped Lusk and assaulted him, and that the said Hutton, without any just cause whatsoever, took from his pocket or holster a pistol or revolver, and with the same in his hand advanced and came towards and to Lusk, and in an abusive and threatening manner, cursing and abusing Lusk all the time, struck Lusk in the face with his fist, causing his mouth and teeth to bleed greatly and profusely and causing his lips and gums to become cut and lacerated and his teeth to become loosened. A demurrer to the declaration and each count thereof was sustained by the trial court, and its ruling certified here for review'.

The alleged unlawful use of the pistol or revolver, and the damage occasioned thereby, constitute the gravamen of this *232action. Counsel for tbe defendants practically admits under tbe bolding in tbe case of *Hatfield*v. *Wyatt, supra,*that tbe defendants would be liable bad tbe battery on and about tbe' face of Lusk been made by tbe pistol or revolver. However, tbe declaration does not so allege. It proceeds on tbe theory that tbe officer carried tbe pistol or revolver in sucb a manner as to cause, or threaten, a breach of tbe peace, and that while so doing be was able to inflict bodily injuries upon Lusk with bis other fist. According to its averments, Lusk was without fault and bad committed no offense justifying an arrest, when tbe officer advanced toward him, pistol in band, using opprobrious epithets, and struck him with bis fist. Tbe presence of tbe revolver, while not used in striking tbe plaintiff, tended to overawe him and cause him to submit to injuries which be otherwise might have avoided. To bold otherwise would permit an officer in such a case to inflict serious bodily injury on a man while bolding him at bay with a pistol. And in such case tbe only recourse tbe public would have would be a personal action against tbe offender for damages sustained. We believe that tbe averments in tbe declaration sufficiently charge that tbe alleged injury to tbe plaintiff in tbe instant ease did flow from tbe unlawful use of tbe pistol, and that by reason of its use that tbe said Lusk was made helpless at tbe bands of tbe deputy sheriff. Tbe presence of tbe revolver was a force in itself which kept Lusk from properly defending himself.

It is argued by counsel for defendants, citing *State*v. *Mankin,*68 W. Va. 772, that the act complained of is not shown in tbe declaration to have been committed by *the*officer under tbe color of office. It is true as a general proposition, as stated in tbe *Mankin*case, that in order to make sureties in official bond liable for personal injury inflicted by tbe officer in making an arrest tbe officer in such case must act under a warrant or other writ calling into execution bis official powers in tbe particular case, or be must act under a claim that an offense has been committed in bis presence, based upon conduct giving color to sucb claim, or calling for judgment and opinion as to whether an offense has been so committed. On looking to tbe two counts of tbe declaration, *233tbe first count does not show that the act complained of was done *colore officii,*but the second count is based upon that theory. However, whether the act was so done or not, *colore officii*is rendered immaterial by our holding in the *Hatfield*ease, *supra,*that the bond was given *quoad*the liability imposed thereby for damages resulting from the unlawful or careless use of deadly weapons by such officer. The only test of liability of the officer is whether he used the weapon “unlawfully or carelessly”. If so, the same rule is applied to him as in the case of the private individual who secures a permit under the statute to carry a revolver.

While the two counts include several allegations regarding an arrest and a trial before a justice and an acquittal on the part of the said Lusk, these several matters are merely descriptive of the existing conditions and tend to show the contention of Lusk that he was attacked by the deputy for no cause whatever.

Being of the opinion that both counts state a cause of action, we must reverse the ruling of the lower court, and overrule the demurrer to the declaration.

*Ruling reversed.*