State Ex Rel. Hedgepeth v. Swanson

ScheNCK, J. This action was instituted by the plaintiff, in the name-of the State,- against the defendant Swanson in his official capacity as Sheriff of Vance County, and the defendant, the National Surety Company, as surety on the Sheriff’s official bond. The question posed by this appeal is whether a sheriff is liable in his. official capacity in an action for malicious prosecution for damages to an individual caused by acts involving the exercise of judgment and discretion and committed within the scope of his official duties ? The law applicable to the facts alleged in the complaint, as enunciated by the opinions of this Court, is that public officers acting in a judicial capacity or ^wasi-judicial capacity are exempt from civil liability and cannot be called upon to respond in damages to private individuals for-the honest exercise of his judgment though his judgment may have been erroneous; however, in cases where a public officer, even judicial or quasi-judicial, instead of acting in an honest exercise of his judgment, acts corruptly or of malice, such officer is- liable in a suit instituted against him by an individual who has suffered special damage by reason of such corrupt and malicious action. In other words, no action lies against a public officer for an honest exercise of his discretion, though erroneous, but for a corrupt or malicious exercise of discretion such officer may be made to respond in damages to an individual injured thereby; Templeton v. Beard, 159 N. C., 63, 74 S. E., 735; “It is other *445 wise in the case of judicial officers and also of administrative officers when engaged in official acts involving the exercise of judgment and discretion, in which case they are sometimes termed guasi-judicial. The principle governing in these cases is that they-cannot be held responsible unless it is alleged and proved that they acted 'corruptly or with malice.’ ” Hipp v. Farrell, 169 N. C., 551, 86 S. E., 570; ibid., 173 N. C., 167, 91 S. E., 831; Moye v. McLawhorn, 208 N. C., 812, 182 S. E., 493; Old Fort v. Harmon, 219 N. C., 241, 13 S. E. (2d), 423; Wilkins v. Burton, 220 N. C., 13, 16 S. E. (2d), 406. Applying this law to the allegations of the complaint we are constrained to hold that his Honor erred in sustaining the demurrers ore tenus lodged by the defendants. There is ample allegation of the fact that the defendant in procuring the search warrant for the plaintiffs premises and the warrant for his arrest upon a charge of violating the prohibition laws acted corruptly and with malice. True, the words “corruptly” or “corruption” are not used to describe the action of the defendant but the words “falsely,” “wantonly,” “out of revenge” and “without regard to the public interest” all imply corrupt action on the part of the defendant Sheriff. And the words “out of hate,” “malicious” and similar expressions in the complaint are a clear allegation of malice. The complaint likewise alleges that the action of the defendant Sheriff in procuring the search of the plaintiff’s premises and arrest of his person was “without probable cause.” The requirements for an action for malicious prosecution against a public officer to recover damages caused by the performance of discretionary acts by such officer in a corrupt and malicious manner having been alleged, the demurrer to the complaint filed by the Sheriff was erroneously sustained, and since the defendant surety company was liable, under C. S., 354, which provides “every such officer and the sureties on his official bonds shall be liable to the persons injured for all acts done by said officer by virtue or under color of his office,” to any person injured by reason of any misconduct of the Sheriff in office, it follows that the sustaining of the demurrer to the complaint filed by the surety was likewise erroneous. Price v. Honeycutt, 216 N. C., 270. 4 S. E. (2d), 611. The judgment of the Superior Court is Beversed.