Franklin E. COKER, Plaintiff,
Alfred SAMMONS, The Board of Commissioners of the Town of Cheswold and The Town of Cheswold, Defendants.
Harrison F. Turner, Dover, for plaintiff.
George R. Wright and David P. Buckson, Dover, for defendants.
Plaintiff has brought suit to recover damages for an assault and battery, allegedly committed by the defendant, Alfred Sammons, on May 23, 1959. The complaint charges, in substance, that Sammons, a member of the Town Police of the defendant Town of Cheswold, was on duty 'for said Town in his capacity as Town Policeman' on 'the date aforesaid', in a police cruiser automobile, owned by the Town, in front of the 'Just Us' Club. The complaint further charges, at about 11:30 P.M. on that date plaintiff was a part of 'a mixed group of people standing in conversation in front of the 'Just Us' Club on the Saulsbury Road about one and one-half miles outside of the corporate limits of the Town of Cheswold'. Continuing, the complaint then charged that while Sammons was at the place and time aforesaid he committed an assault and battery on the plaintiff, by discharging a loaded gun, causing the bullet to pass through the hand of the plaintiff, with resulting personal injuries and damages.
For a reason which is not disclosed--and this is most difficult to comprehend--plaintiff after charging in his complaint (p8) that Sammons committed 'an assault and battery' upon the plaintiff, proceeded to allege (p10) 'that the Defendant, the Board of Commissioners of the Town of Cheswold, was negligent' in five separate respects. Having thus laid out the facts of his case, plaintiff, in paragraph 11 of the complaint, proceeded to allege:
'That the Defendant, The Town of Cheswold, was negligent through imputation of the negligence of the Defendant, Alfred Sammons, its agent and employee.'
The Charter of the Town of Cheswold is to be found in Volume 29, Del.Laws, Ch. 149. This Charter (§ 1) provides that 'the citizens of the Town of Cheswold, shall be a body politic and corporate, in fact and in law, by the name of 'The Town of Cheswold,' and by the name shall sue and be sued, * * *'; it provides for the election of five Commissioners and the selection of Town Policemen; there is no provision by which the General Assembly purported to permit the Town, its officers, or employees to exercise its powers or to act beyond the territorial limits of the Town.
The complaint names Alfred Sammons, 'The Board of Commissioners of The Town of Cheswold' and 'The Town of Cheswold' as defendants; the individual members of the Board are not named or otherwise identified in the complaint. Parties should be fully identified on the record; they must be designated by name and not by a mere description, 67 C.J.S. Parties § 94.  Consequently, if it was plaintiff's intent to hold the individual members of the Board of Commissioners individually responsible for the acts of Sammons, plaintiff did not in any manner so act as to make his intent effective; this is particularly evident since they were not served with process. The allegations of paragraph 3 of the complaint are wholly inadequate if it was plaintiff's intention to make these Commissioners parties to this suit inasmuch as it does not give any clear idea that the individual members of the Board of Commissioners were the target of plaintiff's suit. There is no 'body politic' or municipal corporation in the State of Delaware with the name 'The Board of Commissioners of the Town of Cheswold'. For these reasons they will not be regarded as defendants in this civil action.
It is to be noted that the summons, served by the Sheriff of Kent County, made the following return:
'Served the within writ of summons upon The Board of Commissioners of the Town of Cheswold and The Town of Cheswold by leaving in the hands of Fred Willey Mayor of Cheswold and Arthur Armstrong, member of The Board of Commissioners a true copy of the writ together with a copy of the plaintiff's complaint this 16th day of October A.D. 1959.'
The complaint does not allege nor does the writ of summons state that Mayor Willey or Arthur Armstrong were parties defendant in their individual capacity; moreover, the return negatives any thought that they were served in their individual capacity.
The three other members of the Board of Commissioners were neither named defendants nor were they served with process; the record of the case does not show that they ever entered an appearance in their individual capacities.
These matters are mentioned to demonstrate the reasoning behind the Court's holding that the five members of the Board of Commissioners are not defendants in this civil action. There are no legal principles which would justify retention of the Board of Commissioners as a defendant since the Board has no legal entity. Therefore, I re-state that the Court will consider
that the plaintiff in this action named but two defendants: (1) Alfred Sammons and (2) The Town of Cheswold. The case will be considered and ...