City of Gallatin ex rel. Dixon v. Murphy
| Decision Date | 10 January 1949 |
| Docket Number | 21045 |
| Parties | CITY OF GALLATIN ex rel. DIXON v. MURPHY et al |
| Court | Kansas Court of Appeals |
Not to be published in State Reports.
Dean H. Leopard, L. O. Gillihan and Chas. D. Brandom, all of Gallatin, and Thomas J. Layson, of Trenton, for appellants.
Beavers & Buehner, of Cameron, and Charles J. Hoover, of Trenton, for respondent.
This suit was brought in the name of the City of Gallatin at the relation and to the use of Mildred Dixon, who sued as the widow of Ernest H. Dixon to recover the penalty of an official bond of defendant Cleve Murphy, as city marshal of said city. The first paragraph of the petition alleges that Mildred Dixon was the wife of Ernest H. Dixon at the time of his death; that on the 13th day of July 1946, the defendant Cleve Murphy, unlawfully, wantonly, wrongfully and maliciously and intentionally shot and killed the said Ernest H. Dixon; that the said Mildred Dixon was dependent upon her said husband for her support and maintenance and for the support and maintenance of their minor child. The petition then proceeds to allege further that the defendant, Cleve Murphy, was the duly elected city marshal and ex-officio collector of the City of Gallatin, and as such officer Murphy, as principal, and the other defendants, naming them, as sureties, duly executed a bond to the City of Gallatin for the faithful performance of the duties of said office, said bond being dated May 6, 1946. The condition of said bond is then set forth to the effect that the said Cleve Murphy shall in all things faithfully perform the duties of his said office according to law. A copy of the bond was attached to the petition and made a part thereof. The petition then charges specifically that defendant, Cleve Murphy, as the duly elected, qualified and acting marshal of the City of Gallatin was guilty of a breach of said bond in that on July 13, 1946, the said defendant while acting by virtue and under color of his office as marshal attempted to arrest said Ernest H. Dixon without a warrant for a misdemeanor committed in the presence of said defendant, and that while so acting said defendant unlawfully, wantonly, wrongfully and maliciously and intentionally shot and killed the said Ernest H. Dixon; that by the death of her said husband, realtor has been damaged in the sum of $ 2,500, and prays judgment for that sum, the penalty of the bond.
The amended answer of the defendants was a general denial, and further alleged as a defense that on July 13, 1946, Ernest H. Dixon, acting in concert with others, engaged in fighting and rioting on the streets of the City of Gallatin, in the course of which he committed various felonies and misdemeanors and did assault and beat various persons, and unlawfully disturbed the peace of the City of Gallatin by fighting, rioting, and by loud and unusual noise and feloniously assaulted, beat and wounded one James Reagan with intent to kill or do great bodily harm; that said felonies and misdemeanors were committed in the presence of the defendant marshal who, as peace officer undertook to stop and prevent the commission of the same and attempted to arrest Ernest H. Dixon therefor; that while so attempting, said Dixon and others made an assault upon said defendant and were about to do great bodily harm to him; that defendant, acting in the necessary defense of his own person and in the attempt, by lawful ways and means, to suppress the riot in which Dixon was then and there engaged and in keeping and preserving the peace, and in attempting to apprehend said Ernest H. Dixon for the felonies and misdemeanors aforesaid, shot said Dixon inflicting a wound from which he died; that no more force or means were used by said defendant than were necessary or reasonably appeared to be necessary under the circumstances and conditions then existing to accomplish the purposes aforesaid.
The reply admitted that Murphy was acting in pursuance of his duties as city marshal and as peace officer at the time and place mentioned in the petition, but denied each and every other allegation mentioned in the answer.
The case was tried before a jury in Grundy County, to which it had been removed from Daviess County on change of venue. A verdict was returned signed by nine members of the jury finding in favor of the plaintiff in the sum of $ 1,058.88. In pursuance thereof judgment was rendered against all the defendants for the amount of damages assessed, together with costs in the case. A timely motion for new trial in behalf of the defendants was overruled; proper notice of appeal on behalf of all defendants was filed and the case has been submitted here upon the timely filing of a transcript of the proceedings and briefs on both sides.
Questions for decision pertain to the nature of the cause of action; the insufficiency of the evidence to support the verdict of the jury; the erroneous admission of testimony; and alleged errors in the instructions given on behalf of plaintiff.
Appellants contend first that the court should have sustained defendants' motions to dismiss the petition and for a directed verdict; that the pending case is an action ex contractu and in such an action there can be no recovery under the wrongful death statute, Sec. 3653, R.S.Mo.1939, Mo.R.S.A. In reference to the nature of the cause of action, we think there is no room for any argument or discussion about it because it is plainly obvious from the petition that this is an action for damages based upon an alleged breach of a faithful performance bond given by the defendants. Authorities cited by appellants to the effect that the wrongful death statute does not authorize recovery in an action ex contractu are not in point and are wholly immaterial to the issues made by the pleadings and the evidence in this case. It is the well settled law of this state that an action is maintainable against a public officer and the sureties upon his faithful performance bond upon a showing of a breach of the conditions of said bond; that a peace officer, such as a constable or town marshal, exceeds his power and authority in the use of more force than would reasonably appear to be necessary under the facts and circumstances at the time; and that such use of excessive force renders the principal and his sureties liable on the bond on account of the use of such force. State ex rel. and to Use of Kaercher v. Roth, 330 Mo. 105, 49 S.W.2d 109; City of Festus, ex rel. and to Use of Stolzer v. Kausler, Mo.App., 105 S.W.2d 646. In Maryland Casualty Co. v. Kansas City, Mo., 8
Cir., 128 F.2d 998, loc. cit. 1001, the court cites both of the aforesaid cases and states in the course of the opinion that it is held in Missouri that for wrongful acts done either by virtue of office or under color of office sureties are liable. The opinion further states:
Appellants insist that the court erred in refusing their request for a directed verdict because of the insufficiency of evidence to make a submissible case. In view of the foregoing contention a review of the evidentiary facts applicable to the point raised will be made. There were a large number of witnesses in the case and the transcript of the testimony is extensive, but it will not be necessary to review all of it. If defendants were entitled to a directed verdict, it must be made to appear that there was no substantial evidence to make a submissible issue for the jury on the question whether or not the marshal at the time of shooting Dixon used more force than reasonably appeared to be necessary under the facts and circumstances then existing. To answer this question, we are required to give plaintiff the benefit of the most favorable view of the evidence in her behalf, together with all reasonable inferences to be drawn therefrom. Such rule of law is not questioned and the citation of authority is unnecessary. We shall now state that part of the evidence which we think is particularly relevant to the question which we have to answer.
There was a pre-trial conference, a record of which was made and read to the jury. At this conference it was admitted by the defendants that Cleve Murphy was the duly elected, qualified and acting city marshal of the City of Gallatin in the month of July 1946; that Gallatin was a city of the fourth class. It was further admitted by the defendants that on May 6, 1946, Cleve Murphy as principal, and all the other defendants as sureties, made and executed an official bond in the sum of $ 2,500; that a true copy of said bond was attached to the petition, and that the original bond bears the genuine signatures of said principal and sureties. It was admitted that no written warrant was issued out of any city or police court of the City of Gallatin for the arrest of Ernest H. Dixon on the 13th day of July 1946.
Facts appearing in evidence without contradiction show that Ernest H. Dixon, husband of plaintiff, was shot and killed on July 13, 1946, in the course of a street brawl or near riot on the streets of said city in which several persons were engaged. Ernest H. Dixon is referred to by the name of 'Hum' throughout the testimony. He and his brother, Mounce Dixon and their nephew, Clinton Dale Dixon, resided at or near the town of Jamesport and on the morning of the day in question they went to Gallatin apparently looking for trouble with certain parties by the name of Holcomb. Just what the source of the trouble was between them and the Holcombs does not appear. Soon after the Dixons arrived in Gallatin they went to a beer tavern known as 'Guy's Tavern' which was operated by Homer Pine and Guy...
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