Askay v. Maloney

• Decision Date: 01 April 1919
• Citation: 179 P. 899,92 Or. 566
• Parties: ASKAY v. MALONEY ET AL.
• Court: Oregon Supreme Court

179 P. 899

92 Or. 566

ASKAY v. MALONEY ET AL.

Supreme Court of Oregon

April 1, 1919

Department 1.

Appeal from Circuit Court, Multnomah County; Geo. G. Bingham, Judge.

Action by Thomas M. Askay against Patrick R. Maloney, Tom Swennes and the Southwestern Surety Insurance Company. From judgment for plaintiff, defendants appeal. Reversed, and cause remanded for new trial.

This is the second appeal of this case. The former opinion may be read in 85 Or. 333, 166 P. 29. The defendant Southwestern Surety Company had relied solely on its general demurrer to the complaint, but when the case was reversed it filed an answer challenging certain allegations of the complaint admitting giving two several bonds, one for each of the individual defendants, and setting up substantially that the detective defendants had arrested one John Jones, who had committed a felony; that he escaped, and in their effort to recapture him it became necessary to shoot at him, in doing which with due circumspection the defendant Swennes fired and by chance a bullet from his revolver struck the hard-surface pavement or some other intervening object, whereby it was deflected from its true line of aim and struck the plaintiff's decedent, without fault or negligence on the part of Swennes. Referring to the very full statement in the former report of this case for particulars, it is enough to say that the salient facts are that the two detectives defendants here, had arrested one Jones for robbery, finding on him some of the property taken from the victim he had robbed, and while they were taking the prisoner to the city jail he broke away and was escaping on Pine street in Portland. After hot pursuit and commanding him to halt, the detectives fired at him as he continued to run. At the same time a street car in which the decedent Askay was riding was passing along Fifth street, crossing its intersection with Pine street, and a bullet entered the street car window and killed Askay.

The bond given recites that the ordinances of the city of Portland require each member of the police force thereof to give a bond; that the Southwestern Surety Company has by bids made to the city signified its willingness to issue bonds and that certain employés have been duly appointed members of the police force; and then undertakes to reimburse the city of Portland or any person, "for any loss sustained by reason of the failure of any persons named in the schedule hereto attached, or additions thereto, as hereinafter provided, * * * to faithfully discharge all the duties of their respective offices according to the true intent and meaning of said ordinances, and failure to make payment for any and all damages, that may be adjudged against them by any tribunal for the illegal arrest, imprisonment or injury by him to any person," for the year ending February 2 1915. The individual detectives did not sign this undertaking, and its terms do not indicate that it was intended they should subscribe it. It was executed by the insurance company alone, while the names of the individual defendants are said to be recited in the schedule attached to the instrument.

We remember that the complaint narrates the appointment of the detectives as police officers, the corporate existence of the insurance company and also of the city, describes the situation at the intersection of Fifth and Pine streets, and declares that on December 25, 1914, while the plaintiff's decedent was a passenger on the street car at that point, the policemen "commenced to discharge and did discharge revolvers, and thereby caused leaden bullets to be promiscuously sent towards the street car upon which plaintiff's intestate was then riding, and the said defendants, Patrick R. Maloney and Tom Swennes, at said time, each holding and discharging revolvers, carelessly and negligently, and without care or caution, disregarding the fact that said intersection was a place where passengers and people were likely to be, discharged said revolvers and caused one of said leaden bullets to strike plaintiff's intestate," whereby he was killed. It is further charged that the officers mentioned carried revolvers by virtue of their official capacity and pretended to be in discharge of their regular duties at the time, in that they, "although without justification, were discharging their said revolvers towards a person whom, as said police officers, they and each of them had arrested and taken into custody."

The defendants, challenging the complaint in material particulars, urge as a justification that the party arrested had committed the felony of robbery, for which they had taken him into custody; that he escaped while they were conducting him to the city jail, and after pursuing him and commanding him to halt they fired at him, using due care and caution, and the killing of Askay was the result of unavoidable accident. This matter was traversed by the reply. From a verdict and judgment in favor of the plaintiff, the defendants have appealed.

Henry J. Bigger, of Portland (Stanley Myers and Chester V. Dolph, both of Portland, on the briefs), for appellants.

Oren R. Richards and Coy Burnett, both of Portland (Richards & Richards and Coy Burnett, all of Portland, on the briefs), for respondent.

BURNETT, J. (after stating the facts as above).

In passing, it is proper to note that, as stated in 29 Cyc. 1451:

"The purpose of an official bond being to protect the government from loss due to the improper performance of an official duty, as well as to insure the proper performance of such official duty, a bond purporting to be an official bond, given when not required by the law, has no legal effect."

This is well supported by authority. It is laid down in Malheur County v. Carter, 52 Or. 616, 98 P. 489, that the complaint itself must show the authority for taking an official bond and that the recitals of the instrument itself are not sufficient for that purpose. It would seem to be necessary, therefore, that the complaint should properly plead the legal necessity for the undertaking described in the complaint. The allegation of that pleading in the instant case is "that on the 28th day of February, 1914, in accordance with the law covering such cases, the Southwestern Surety Company entered into a bond or undertaking," a copy being attached as an exhibit. To state that this instrument was executed "in accordance with the law covering such cases" is but to state a conclusion of law, and is not the averment of a fact. Under section 90, L. O. L., it is sufficient to refer to the ordinance or enactment of any incorporated city or town by its title and the date of its approval in stating a right derived therefrom; but it is essential that this section should be complied with if the plaintiff would show the validity of the undertaking upon which he relies.

The occurrence narrated in the complaint took place, as stated therein, December 25, 1914. At that time the city of Portland was working under the charter which went into effect July 1, 1913, as revised by the council of the municipality August 19, 1914. Of this we must take judicial notice. Chapter 273, p. 514, Laws 1917; Crowe v. Albee, 87 Or. 148, 169 P. 785. That charter contains no direct reference to the duty of a police officer to file an undertaking. While, as taught in Clark v. Bank of Hennessey, 14 Okl. 572, 79 P. 217, 2 Ann. Cas. 219, "giving a bond" by an official does not necessarily mean that he must sign it or that his signature is essential to its validity, unless he does sign it he is not directly liable upon it as a matter of contract. We are not unmindful, indeed, that under section 349, L. O. L., when a public officer by official misconduct forfeits his official undertaking or other surety or renders his sureties therein liable thereon, any person injured by such misconduct, or the one entitled to the benefit of such surety, may maintain an action thereon in his own name against the officer and his sureties. This can mean nothing more than that upon an instrument executed by the officer he may be sued jointly with his sureties for damages resulting from his misconduct in office, if the stipulations of the instrument cover the situation involved.

A perusal of the undertaking here in question shows no more than that the surety company collaterally undertook to indemnify the city or any one injured by the malfeasance of the individual defendants. The deduction is that the latter are not directly liable as upon contract. It is not intimated in the pleadings that they gave a bond. According to the complaint, if culpable at all, they committed a tort and not a breach of the contract; while, on the other hand, the surety company, if liable at all, is chargeable only upon contract and not for tort. The responsibility of the company is not concurrent, but collateral and successive, while that of the individual defendants is primary. The undertaking of the company was to "reimburse," which means to replace as an equivalent for what has been taken, lost, or expended, to refund, pay back, restore. 7 Words and Phrases, 6051, indicating clearly a secondary liability.

It is the law of the case, because so laid down in the former decision herein, that the demurrer on this ground was not well taken. The effect of that ruling, however, must be limited strictly to that extent. What is said here leads to the conclusion that the circuit court was in error in not compelling the plaintiff to elect between the two causes of action stated in the complaint, the one for tort and the other on contract. It was a right of the defendants that an election should be compelled. Hayden v. Pearce, 33 Or. 91, 52 P. 1049; High v. S. P. Co., 49 Or. 98, 88 P. 961; Harvey v. S. P. Co., 46 Or....