Webb v. LeRoy, 168 N.C. 236 (1915)

Feb. 17, 1915 · Supreme Court of North Carolina

168 N.C. 236

J. B. WEBB v. J. H. LeROY et als.

(Filed 17 February, 1915.)

1. Pleadings — Principal and Agent — Deputy—Acts of Agent — Demurrer.

Where the complaint alleges that the defendant is the fish commissioner of the State and that his deputy, attended with persons to assist him, removed the plaintiff’s fishing nets and deprived him of his property, etc., erroneously believing the nets were setting west of a certain line, in violation of law, a demurrer is bad which attempts to raise the question of liability of the fish commissioner for the acts of his deputy, it being a fair inference that the deputy was acting under his orders and instructions. . *

2. Pleadings — Principal and Agent — Deputy—Acts of Agent — Charge Against Principal.

Allegations in an action against the State Fish Commissioner for damages, that the action of his deputy was wrongful in seizing the plaintiff’s fish nets, etc., and that the commissioner wrongfully converted them to his own use, are direct charges of a personal responsibility of the commissioner himself, for the wrongs alleged.

Appeal by plaintiff from Garter, J., at Fall Term, 1914, of Chowan.

Civil action, heard upon complaint and demurrer. The court sustained the demurrer, and the plaintiff appealed.

Pruden & Pruden and S. Brown Shepherd for plaintiff.

W. S. Privait and Ward & Thompson .for defendant.

Beown, J.

The motion of the plaintiff made’ in this Court to amend the summons and complaint so that the suit may be brought in the name of the State upon the relation of the plaintiff, as well as by the plaintiff individually, is allowed. The complaint alleges that the defendant LeRoy is fish commissioner for the State of North Carolina and executed ’ the bond sued on in the sum of $5,000, with the defendant United States Fidelity and Guaranty Company as surety; that on 23 March, 1913, the plaintiff was the owner of thirteen shad nets which were set to the east of a certain line in Albemarle sound in all respects in conformity to the laws of the State; that on or about 23 March, 1913, the defendant LeRoy, by bis deputy, Tbomas P. Leary, attended by persons to assist bim, took up tbe said nets and removed them from tbe place where tbey were setting, and deprived tbe plaintiff of bis property, right and use in tbe same; that said deputy did this believing tbe said nets were setting west of said line in violation of tbe law.”

Tbe point attempted to be raised by tbe demurrer is tbe liability of tbe fish commissioner for tbe act of bis deputy. "We do not think, in view of tbe allegations of this complaint, which upon demurrer must be taken to be true, tbe point can be thus raised.

Tbe complaint further alleges “that tbe action of tbe defendants and all of them in and respect to tbe said nets set out in tbe last preceding section was wrongful and unlawful, and tbe said defendant LeRoy, commissioner, by seizing and selling tbe said nets, purporting to act under tbe law, wrongfully converted tbe same to bis own use.”

By these allegations tbe plaintiff charges tbe direct personal responsibility of tbe defendant LeRoy in seizing and .selling tbe nets and converting tbe same to bis own use. It is further a fair inference from tbe entire complaint that tbe deputy was acting under tbe orders and instructions of tbe commissioner.

For these reasons we think bis Honor erred in sustaining tbe demurrer and dismissing tbe action.

Reversed.