#### STATE OF NORTH CAROLINA Ex Rel. HUGH P. PRICE, v. WILLIAM G. HONEYCUTT and AMERICAN INDEMNITY COMPANY.

(Filed 11 October, 1939.)

1. Pleadings § 20—

A demurrer tests tbe sufficiency of the complaint to state a cause of action, admitting for the purpose the truth of the facts alleged and relevant inferences of fact arising thereon.

2. Sheriffs § 6a: Principal and Surety § 5a — A sheriff, in his official capacity, and his surety are liable for wrongful arrest ox1 foi* excessive force used in making arrest under color of office.

The complaint in this action against a sheriff! in his official capacity and against his surety alleged that plaintiff! was permanently injured by the sheriff’s use of excessive force in arresting him, and that the arrest was wrongful and unlawful. *Helé:*Defendants’ demurrer to the complaint should have been overruled, since, even if the terms of the bond “and in all other things well and truly and faithfully execute the said office of sheriff,” C. S., 3930, refers solely to the specific duties enumer- ■ ated and does not impose liability for the wrong alleged, the provision of G. S., 354, extends the liability on the sheriff’s general official bond and imposes liability for the wrong alleged committed under color of his office.

3. Principal and Surety § 4—

The provisions of public laws in effect at the time of the execution of an official bond become a part of the contract, since the surety will be presumed to have executed the agreement with knowledge thereof.

*271Appeal by plaintiff from *Warlick, J.,*at March-April Term, 1939, of Mitchell.

Reversed.

*J. W. Ragland, J. C. B. Ehringhaus, and Charles Aycock Poe for plaintiff, appellant.*

*McBee & McBee and W. C. Berry for William, G. Honeycutt, appellee.*

*Harkins, Van Winkle & Walton for American Indemnity Company, appellee.*

Seawell, J.

Tbe relator caused tbis action to be brought for recovery against tbe sheriff and tbe American Indemnity Company, surety on bis bond, for damages resulting from excessive force used in an attempt to arrest tbe plaintiff by tbe said sheriff under color of bis office.

Tbe complaint, amongst other more formal matters, sets up that tbe sheriff, while acting under color of bis office, “viciously assaulted, severely wounded and permanently and seriously injured, and arrested tbe relator herein and imprisoned him in tbe common jail of said county and there confined him forcibly and against bis will, from seven o’clock p.m. until twelve o’clock midnight, or thereabouts, restraining him of bis liberty and subjecting him to hardships, privation, humiliation and disgrace.” “That said assault was made upon tbe relator by tbe said Honeycutt, as aforesaid, with a deadly weapon, to wit, a blackjack, with which tbe relator was stricken three or four vicious and powerful blows upon bis bead, one of which was just above bis right eye, causing tbe permanent loss of sight in said right eye, and greatly injuring and damaging him for life; and that said assault upon, and arrest and imprisonment of, the relator as aforesaid was without legal process or color thereof- and not in due course of law.” It is further alleged that the conduct of Honeycutt was in wanton and reckless disregard of the rights of the relator and wholly without cause or justification in law.

As the allegations of fact in the complaint are admitted by the demurrer, we may assume that the sheriff had given his official bond with his codefendant as surety, and that the said bond was conditioned as required by law, approved, accepted, and filed.

The bond referred to is that required by O. S., 3930, commonly known as the process bond. “The third bond, for the due execution and return of process, payment of fees and moneys collected, and the faithful execution of his office as sheriff, shall be not more than five thousand dollars, in the discretion of the board of county commissioners, and shall be conditioned as follows(here follows a statement of specific requirements) “and in all other things well and truly and faithfully execute the said office of sheriff during his continuance therein . . .”

*272Tbe defendants demurred to tbe complaint, tbe defendant Honeycutt upon tbe ground tbat be was sued witb respect to bis official conduct and no cause of action was stated against bim in bis official character, tbe defendant American Surety Company upon tbe ground tbat tbe official bond given by it as surety did not cover tbe facts alleged or tbe misconduct of tbe sheriff, if any, and no liability on its part arose upon said bond. Tbe demurrer was sustained and plaintiff appealed.

Tbe court is called upon to answer tbe single question: Did tbe facts alleged in tbe complaint, assuming them to be true, raise a liability upon tbe sheriff’s bond? There are other questions tbat may help to its answer.

When are tbe duties of tbat office well and truly and faithfully performed? Does tbe public policy to which we have referred go no further than to satisfy some aggrieved person interested in tbe service of process or defrauded of bis moneys? Does it paramount tbe rights of society merely and not reciprocally tbe rights of its members? To what extent may the language required by tbe law to be put into tbe sheriff’s bond be interpreted as reflecting a broader public policy — a more equitable exercise of public power? In tbe exercise of this power, does tbe sheriff owe no official duty under bis bond except to those who have instigated bis action — none to those who are on tbe receiving end and who are dealt witb under color of bis office?

Tbe factual situation in a number of cases cited by defendant, where official bonds have not been considered under tbe given circumstances sufficient to cover wrongful acts of tbe sheriff, may be distinguished from tbat in tbe case at bar.

While it is true tbat the opinion in *Davis v. Moore,*215 N. C., 449, brings forward many of the old cases, pertinent of course to the subject, it will be found tbat these cases did not cover the exact question presented here, and the inferences of law should not now be taken out of their setting. In *Davis v. Moore, supra,*which is concerned witb the negligent act of a deputy in closing the door upon a prisoner in jail and injuring bis band, the court properly declined to bold the incident to be covered by 'the sheriff’s bond.

*Crumpler v. Governor,*12 N. C., 52, was concerned witb a proceeding on the sheriff’s bond for the collection of certain taxes. Tbe gist of tbat opinion was tbat the particular taxes sued for could not be recovered under the bond on which summary judgment was entered, without resort to the general condition, which was not required by law to be inserted, tbat the sheriff shall “in all things well and truly and faithfully execute the said office,” which was held to refer only to the duties listed. Since the specific provisions of the various bonds at tbat time required to be given provided for the security of different taxes, the court held the bond not liable under this general provision.

*273
      *Governor v. Matlock,*12 N. C., 214, deals witb a similar situation, bolding that tbe county tax for wbicb a bond bad been required by law could not be recovered under tbis general clause in tbe sheriff’s general official bond required by tbe Act of 1777.

In *Jones v. Montfort,*20 N. C., 69, tbe opinion written by *Gaston, J.,*it is beld that tbe concluding general clause in tbe sheriff’s bond, relating to bis duties, could not be beld to “extend to tbe fiscal duties of tbe office.”

*Boger v. Bradshaw,*32 N. C., 229, also beld that tbe clause in tbe sheriff’s official bond relating to bis general duties did not extend to tbe public and county taxes.

In *Sutton v. Williams,*199 N. C., 546, the sheriff bad been sued upon bis bond for the negligent acts of a prisoner wbicb be bad suffered to escape. Tbe opinion does consider the cases above mentioned and construed them as covering the facts in that case; but approval of those cases was not necessary to a decision in the case then under consideration, since the injury complained of could not in any event be considered as a natural and probable consequence of the dereliction of duty attributed to the sheriff, and the opinion adds nothing to the strength of the position by the defendant.

In *Midgett v. Nelson,*214 N. C., 396, the bond sued upon simply stipulated that the surety company “does hereby agree to indemnify the State of North Carolina . . . against the loss of money or other personal property through the failure of any of the persons . . . named in the schedule forming a part of tbis bond . . . *faithfully to discharge the dulies of their respective offices or employments as described in such schedule,*and honestly to account for all money or other personal property that may come into their respective bands by virtue of said offices or employments,” etc. It is noted in the opinion that the bond was not “conditioned,” as required by 0. S., 1870, “for the faithful performance” of the duties of Assistant Fisheries Commissioner. Tbe suit was by a person claiming liability for bis false arrest. Tbe bond was construed as a bond of indemnity to the State, and not available to the plaintiff. It has no bearing upon the case at bar.

*We*are not inadvertent to tbe construction put upon similar clauses in tbe sheriff’s general bond in tbe earlier cases cited, to tbe effect that tbe general statement “and shall in all other things well and truly and faithfully” perform tbe duties of bis office, must be restrained to tbe duties specially listed.

In *Jones v. Montfort,*20 N. C., 69, *per Gaston, J.,*the Court rather generously varies the statement of tbis bolding in referring to *Governor v. Matlock, supra.*“Tbe decision then made was in conformity to the principle before established in the cases of *Crumpler v. The Governor,*
      *2741 Dev., 52, and *The Governor v. Barr,*1 Dev., 65, that the general words in the conclusion of the condition shall be restricted by the preceding particular words, *io duties of a lilce hind with those specified.”*In fact, *Crumpler v. Governor, supra,*and *Governor v. Matlock, supra,*and cases following closely this principle, regard the general statement as referring *only*to the previously listed duties, and as adding nothing whatever to the obligation of the bond. It is singular that in most of these decisions the significant word “other” is not mentioned at all, nor is any weight given to its obvious effect in recognizing that the sheriff has duties “other” than those specifically listed.

It is easy to see why such a general statement would not be expected to cover fiscal duties of the sheriff, as to some of which, as noted in the *Matlock case, supra,*and the *Crumpler case, supra,*he was required to give other security, but we fail to understand why the clause can be regarded as a mere cadence to a period or, to use a homely illustration, a varnish to the job.

Further discussion along this line, however, may not be important, since we are satisfied that the Legislature has extended the liability on the sheriff’s general official bond beyond this narrow restriction, by a statute which parallels the general clause we are considering. C. S., 354, on official bonds, provides: “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 bonds shall be liable to the person injured for all acts done by said officer by virtue or under color of his office.” The defendant surety presumably made its contract with a knowledge of this public law, and it entered into the contract. *Hood, Comr. of Banks, v. Simpson,*206 N. C., 748, 175 S. E., 193; *Bateman v. Sterrett,*201 N. C., 59, 159 S. E., 201; *Steele v. Insurance Co.,*196 N. C., 408, 145 S. E., 787, 61 A. L. R., 821.

In *Warren v. Boyd,*120 N. C., 56, 26 S. E., 700, this statute was held to create or declare a liability on the sheriff’s official bond for a false arrest.

In *Kivett v. Young,*106 N. C., 567, 569, construing a similar condition in the bond of the register of deeds, the Court said the security of the bond was not confined to the specially listed duties, but that this statute enlarges the scope and purpose of official bonds in accord with sound policy to cover other duties. The contention here advanced by the defendant was made there, and the Court said: “The learned counsel for the appellant contends in his cogent brief that the condition of the *275bond of the defendants sued upon is such as that so prescribed, and that this Court has repeatedly decided that the duty of the register embraced by it is confined to The safekeeping of the books and records’ of his office, and that the general words, ‘and for the faithful discharge of the duties of his office,’ have reference to, and only to, such duty, and not to other general duties. *This Court did, in the past, so interpret the statute and like conditions in other classes of official bonds.*. . . It is singular that the clause last recited, notwithstanding a known evil to be remedied, was not enacted until 1883. It first appeared as part of The Code. So that now official bonds and the conditions of them embrace and extend to all acts done by virtue or under color of office of the officer giving the bond.” The Court observes pertinently: “There were no adequate reasons why the conditions of official bonds should not extend to and embrace all the official duties of the office, and there were serious ones of justice and policy why they should.” See 57 C. J., 1014, footnote 61 (a).

Upon review of these authorities we do not think that the doctrine *stare decisis,*if it applies at all, is involved to such an extent as to prevent the Court in applying to the case sound and equitable principles of law. "We feel that if a departure has been made from these principles it grew out of the unnecessary application of a doubtful rule of interpretation in the earlier cases, an impropriety evidently perceived by *Gaston, J.,*in writing *Jones v. Montfort, supra,*since even thus early *stare decisis*is suggested as a reason for following the precedent. No doubt C. S., 354, was enacted to put into effect a broader public policy.

The general rule in other jurisdictions is that the sureties on the official bond of a sheriff are liable for a wrongful arrest and imprisonment under color of his office (57 C. J., 1042), for an assault and battery, while in the prosecution of an arrest, or for excessive force used therein. *Cambridge v. Foster,*195 Mass., 411, 81 N. E., 278; *Branch v. Guinn*(Texas Civ. A.), 242 S. W., 482; *Deason v. Gray,*192 Ala., 611, 69 S. E., 15; *Copeland v. Dunehoo,*36 Ga. A., 817, 138 S. E., 267; *Greenberg v. People,*225 Ill., 174, 80 N. E., 100; *Cash v. Peo.,*32 Ill. A., 250; *State v. Walford,*11 Ind. Appeals, 392, 39 N. E., 162. In some of these cases different phraseology is employed in the bonds, but the principles drawn from the cases are applicable.

The theory that when the sheriff acts viciously, immoderately and with excessive force in making an arrest he becomes *ipso facto*accountable to an injured person in his private capacity only, is not a reasonable one, and imports an official immunity that is not ordinarily extended to a ministerial officer. It would be a poor law that would permit the sheriff, *in medias res,*to throw away his badge and ply his billy with deadly effect.

*276Tbe law is never more definitely on trial tban it is wben it comes in contact with tbe public in its execution. To preserve tbe respect tbe people bave for it as an instrument of justice, and to appease tbe spirit of just resentment against oppression, wbicb often fiares into rebellion, tbe execution of law, while not a matter of debate between tbe sheriff and an offender, should not be attended with unnecessary harshness. It is true that officers of tbe law must be protected in their attempts to execute it, and great consideration is given them by tbe courts in matters of arrest. Questions of excessive force must be delicately bandied and tbe conduct of officers cannot, at times, be weighed in golden scales. Evidently tbe line must be drawn somewhere; but it cannot, with justice, be staked out by a sudden shift in tbe legal relation of tbe parties, a discontinuance of official character at tbe moment tbe arresting officer begins to violate bis duty and inflict injury under color of bis office. Tbe injured party was not on equal terms from tbe beginning. He was approached under color of an authority wbicb be was bound to respect, and by an officer equipped with physical means sufficient to accomplish bis purposes, under tbe assumption that they are, and will remain, lawful. He must rely on tbe restraint wbicb tbe law throws around tbe arresting officer at tbe same time it clothes him with power, and upon tbe guaranty provided by law that official duty shall not be disregarded or tbe delegated power abused.

If not tbe wording of tbe bond, then most certainly tbe force of tbe statute, brings him within this protection. Tbe sheriff will not be permitted to act under color of bis office down to tbe point where be is remiss in bis duties, then shed bis official character and escape into tbe first person singular, to tbe relief of bis surety.

Tbe judgment sustaining tbe demurrer is

Eeversed.