State ex rel., to Use of Leatherman v. Harris

• Citation: 77 S.W.2d 846,229 Mo.App. 304
• Parties: STATE OF MISSOURI EX REL. ARTHUR LEATHERMAN, APPELLANT, v. JAMES H. HARRIS ET AL., RESPONDENTS
• Decision Date: 03 December 1934
• Court: Court of Appeals of Kansas

77 S.W.2d 846

229 Mo.App. 304

STATE OF MISSOURI EX REL. ARTHUR LEATHERMAN, APPELLANT, v. JAMES H. HARRIS ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

December 3, 1934

Appeal from Circuit Court of Callaway County.--Hon. W. M. Dinwiddie Judge.

Judgment affirmed.

D. M Cuthbertson and Baker & Baker for appellant.

Harris Price & Alexander for respondents.

OPINION

TRIMBLE, J.

--The suit herein is an action for damages on the official bond of defendant, Harris, as Steward of State Hospital No. 1 at Fulton, Missouri, and his surety thereon, The Aetna Casualty & Surety Company of Hartford, Connecticut. Each defendant demurred to the first amended petition, the grounds of each demurrer being the same, to-wit: 1. The petition fails to state facts sufficient to constitute a cause of action against the defendant Harris or his surety; 2. It fails to state any facts showing a right in plaintiff to sue on Harris' official bond; 3. It fails to state anything which constitutes a breach of said official bond; 4. Because, under Chapter 46, Revised Statutes of Missouri, 1929, plaintiff has no cause of action against either defendant on the official bond alleged.

The trial court sustained both demurrers, whereupon plaintiff declined to plead further and stood on his said petition; judgment being rendered against him and in favor of both defendants, he duly appealed.

Omitting merely formal allegations as to the suit being instituted by the State of Missouri at the relation of Arthur Leatherman, plaintiff, and as to the corporate nature and right to do business in the State of Missouri by the surety defendant, the said first amended petition sets out the names of the duly appointed, qualified and acting, members of the State Eleemosynary Board of Managers of Missouri on June 10, 1933, and alleged that in their official capacity as said Board of Managers, they were vested with title to all property of the State used in the eleemosynary institutions thereof, particularly the Missouri State Hospital for the Insane No. 1, located at Fulton, in Callaway County, Missouri, and "most particularly one automobile, a Dodge sedan, 1930 model, designated for the use and benefit of, and then and there being used by, James H. Harris, as steward of said institution, for his use and benefit in the performance of his duties in his official capacity as said steward by virtue of Section 8574 of the Revised Statutes of the State of Missouri, for the year 1929."

The said petition further alleged that on said date, June 10, 1933, defendant James H. Harris was duly appointed, qualified and acting steward of Missouri State Hospital for Insane, No. 1, located at Fulton, Callaway County, Missouri; and by virtue of his official position, he was the custodian of said automobile, Dodge sedan, 1930 model, and in his said official capacity as steward had full care, control and custody thereof as agent and employee of said State Board of Managers as heretofore particularly set out.

Said petition then alleged the execution of the official bond of said Harris as steward, with his codefendant as surety, unto the State of Missouri, "conditioned upon his faithful performance of his official duties as said Steward for said Missouri State Hospital for the Insane No. 1, as required by the law of the State of Missouri, to-wit, Section 8591, Revised Statutes of the State of Missouri for the year 1929, in the sum of $ 25,000. Copy of said bond is herewith attached and marked 'Plaintiff's Exhibit A;' that said bond was given for the protection of the citizens of the State of Missouri, and particularly this plaintiff against injury resulting from the negligence or misfeasance of the said James H. Harris in the performance of his duties as said steward."

It is further alleged that said Harris as said steward in the faithful performance of the duties of his said office "owed a duty to the State of Missouri, to the said State Eleemosynary Board and to the citizens of the State of Missouri, and particularly to this plaintiff to use the proper degree of care in the use, management and control of all the property intrusted to him by the State of Missouri, and the said Eleemosynary Board as aforesaid, so as not to endanger or jeopardize the rights, lives and property of the citizens of the State of Missouri, and particularly of this plaintiff."

That on the 10th day of June, 1933, said Harris as said steward acting in the course of his employment, and in violation of the conditions of said bond,

"Negligently and carelessly delivered over to his son Roy Harris, an infant of the age of seventeen (17) years, said automobile heretofore mentioned and described, with his full permission and consent and allowed said Roy Harris, then and there at that time to drive, manage and control said automobile on the public streets of Fulton, Missouri, and on the public highways of the State of Missouri, when he then and there at that time well knew, or by the use of ordinary care should have known, that the said Roy Harris aforesaid was an incompetent person to operate an automobile and was a very negligent, careless and reckless driver of an automobile, and that in allowing said Roy Harris to drive said automobile, he was endangering the lives of the citizens of this State with whom he might come in contact while on the public streets and highways aforesaid.

"That the said Roy Harris then and there while driving said automobile with the consent and permission of his father James H. Harris, as aforesaid, in a southerly direction over and along United States Highway No. 54, a public highway and thoroughfare in Callaway County, Missouri, at a point approximately five miles north of Fulton, Missouri, and as and while Louise Leatherman, then the wife of the plaintiff, was riding as a passenger in the said automobile aforesaid, the...