Ingram v. Evans, 7 Div. 98.

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, Justice.
Citation227 Ala. 14,148 So. 593
PartiesINGRAM v. EVANS et al.
Docket Number7 Div. 98.
Decision Date16 March 1933

148 So. 593

227 Ala. 14

INGRAM
v.
EVANS et al.

7 Div. 98.

Supreme Court of Alabama

March 16, 1933


Rehearing Denied May 25, 1933.

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Action for breach of official bond by James Ingram against Rube Evans and the Indemnity Insurance Company of North America. From a judgment for defendants, plaintiff appeals.

Reversed and remanded. [148 So. 594]

Alto V. Lee and W. T. Murphree, both of Gadsden, for appellant.

Dortch, Allen & Dortch, of Gadsden, for appellee.

THOMAS, Justice.

The suit was for damages inflicted by a police officer, against that officer and the surety on his official bond.

The civil liability of officers and sureties for ministerial acts done or performed under color of office was the subject of recent consideration in Pickett v. Richardson, 223 Ala. 683, 138 So. 274; Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794; Burge v. Scarbrough, 211 Ala. 377, 100 So. 653.

Demurrers were sustained to counts 1, 4, and 6, and the trial was had on counts 2, 3, and 5.

The legal effect of the agreement and intention of the parties to the bond of indemnity is well stated in the counts as amended, to which demurrers were overruled, and in respect to it the breached and resulting damages sustained have been assigned; and as so assigned show that the contract obligation has been broken and plaintiff has a cause of action. This was sufficient under the authorities supra and National Surety Co. v. Citizens' Light, Heat & Power Co., 201 Ala. 456, 458, 460, 78 So. 834; McCord v. Bridges, 211 Ala. 295, 297, 100 So. 469; Stearnes v. Edmonds, 189 Ala. 487, 491, 66 So. 714; Code of 1928, § 9462 (Code 1923, § 9462). There was no misjoinder of parties or causes.

The party having the beneficial interest has the right to use the name of the party who is the obligee in a bond (Alabama Power Company v. Hamilton, 201 Ala. 62, 77 So. 356; Robinson Lumber Co. v. Sager, 199 Ala. 675, 75 So. 309) not prescribed by law. Peinhardt v. West, 212 Ala. 83, 101 So. 736. The city of Attalla is alleged to be the obligee in the bond (sought to be declared upon) obligatory on the principal and surety for the use and benefit of every person who was injured and came within the terms and contract obligations. Sections 2612, 2614, Code of 1923. These sections are a part of article 5 of chapter 45. Several of the sections contain expressions as "If any officer required by law" and "Every official bond is obligatory on the principal and sureties," etc. Sections 2613, 2615, Code.

The inquiry then is: Was this an official bond properly declared on in the breach assigned against an officer required by law or by municipal authorities to give that bond?

On a bond that is prescribed by law, the injured party may sue, as was done here. Peinhardt v. West, supra; Deason v. Gray, Sheriff, 189 Ala. 672, 66 So. 646; National Surety Co. v. Plemmons, 214 Ala. 596, 108 So. 514. This is the construction of our statutes, sections 1887, 1905, 2595, and 2612, Code. No error was committed in declining the offer of plaintiff to make the city a party suing for the use of the original plaintiff, and in sustaining defendants' motion to strike such last amendment.

The minutes of the city offered in evidence show the due election of defendant Evans as a street overseer and policeman at a stated salary and for the time indicated-"until their successors are elected and qualified."

The city clerk, Mr. McClendon, testified without objection, that:

"Rube Evans was appointed patrolman of the City of Attalla by the Mayor. I don't think he was elected by the council at a regular meeting; he made a bond. I don't know that we have anything in our Minutes or in the Ordinance requiring this bond. I know that all policemen make bond. I don't know that there is anything at all in the Ordinance or the Minute Book, I have never seen them. They are all under bond all right; they are under bond
"After the execution of the bond by Rube Evans on September 2, 1930, he performed the duties of policeman in the City of Attalla, and he was paid for this service. I have been City Clerk of the City of Attalla seven years. The building in which the books and ordinances of the City of Attalla were kept was burned some time ago."

The former Mayor, Mr. Irwin, testified:

"I was Mayor of the City of Attalla in 1918 and 1922. There was a fire in Attalla that destroyed some of the Ordinance books of the City of Attalla during the Stewart administration; that was in 1912. [148 So. 595]
"Here the plaintiff propounded this question to the witness:
"I will ask you whether or not it is your best recollection that at that time prior to that fire the city had an ordinance requiring the policemen to give bond?
"Defendant objected to this question, and the Court sustained the objection, and the defendant then and there duly excepted.
"Plaintiff's counsel stated that they offered to show by the witness that his best recollection is that there was an ordinance of the City of Attalla at the time the fire occurred that required the policemen to give bond."

Where there are no written minutes that were transcribed and kept, or where they were, after passage and transcription, destroyed, as by fire, parol evidence may be given of the fact of the passage of such ordinance and the contents thereof. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. There was sufficient preliminary proof, or the offer thereof, of the destruction by fire of said municipal records, as to let in secondary evidence that the successive mayors and boards of aldermen, during the period covered by such destroyed minutes, had required official bonds...

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10 practice notes
  • Home Ins. Co. of New York v. Scharnagel, 8 Div. 493.
    • United States
    • Supreme Court of Alabama
    • May 11, 1933
    ...So. 350; Capital City Ins. Co. v. Jones, Assignee, 128 Ala. 361, 364, 30 So. 674, 86 Am. St. Rep. 152. See, Ingram v. Evans (Ala. Sup.) 148 So. 593, on beneficial interest under bonds. The case was before the court without a jury, and under our rule (Hackett v. Cash, 196 Ala. 403, 72 So. 52......
  • Whitaker v. Kennamer, 8 Div. 586.
    • United States
    • Supreme Court of Alabama
    • June 21, 1934
    ...L. R. A. (N. S.) 274; McMillan v. Aiken, 205 Ala. 35, 40, 45, 88 So. 135; Baxley v. Jackson, 216 Ala. 411, 113 So. 500; Ingram v. Evans, 227 Ala. 14, 148 So. 593; Wright v. Fannin, 219 Ala. 234, 121 So. 528. Requirements of the statute for a probate as a proceeding in rem are: That wills of......
  • Jefferson County v. O'Gara, 6 Div. 473.
    • United States
    • Alabama Court of Appeals
    • June 30, 1939
    ...Supt. of Banks, 201 Ala. 502, 78 So. 856; Henry, County Treasurer v. State ex rel. Kemp, 205 Ala. 196, 87 So. 816; Ingram v. Evans et al., 227 Ala. 14, 148 So. 593; Hamilton v. Edmundson, 235 Ala. 97, 177 So. 743; Meechem on Public Officers, Sec. 1; Throop on Public Officers, Sec. 2. [195 S......
  • Bull v. Albright, 6 Div. 56
    • United States
    • Supreme Court of Alabama
    • June 22, 1950
    ...Code 1940, do not seem to apply. It is therefore only a common law undertaking and suit on it must be based accordingly. Ingram v. Evans, 227 Ala. 14, 148 So. 593; Calhoun v. Lunsford, 4 Port. 345; 46 Corpus Juris 1076, note 42; 43 Am.Jur. 206, note 11; Howard v. United States, 184 U.S. 676......
  • Request a trial to view additional results
10 cases
  • Home Ins. Co. of New York v. Scharnagel, 8 Div. 493.
    • United States
    • Supreme Court of Alabama
    • May 11, 1933
    ...So. 350; Capital City Ins. Co. v. Jones, Assignee, 128 Ala. 361, 364, 30 So. 674, 86 Am. St. Rep. 152. See, Ingram v. Evans (Ala. Sup.) 148 So. 593, on beneficial interest under bonds. The case was before the court without a jury, and under our rule (Hackett v. Cash, 196 Ala. 403, 72 So. 52......
  • Whitaker v. Kennamer, 8 Div. 586.
    • United States
    • Supreme Court of Alabama
    • June 21, 1934
    ...L. R. A. (N. S.) 274; McMillan v. Aiken, 205 Ala. 35, 40, 45, 88 So. 135; Baxley v. Jackson, 216 Ala. 411, 113 So. 500; Ingram v. Evans, 227 Ala. 14, 148 So. 593; Wright v. Fannin, 219 Ala. 234, 121 So. 528. Requirements of the statute for a probate as a proceeding in rem are: That wills of......
  • Jefferson County v. O'Gara, 6 Div. 473.
    • United States
    • Alabama Court of Appeals
    • June 30, 1939
    ...Supt. of Banks, 201 Ala. 502, 78 So. 856; Henry, County Treasurer v. State ex rel. Kemp, 205 Ala. 196, 87 So. 816; Ingram v. Evans et al., 227 Ala. 14, 148 So. 593; Hamilton v. Edmundson, 235 Ala. 97, 177 So. 743; Meechem on Public Officers, Sec. 1; Throop on Public Officers, Sec. 2. [195 S......
  • Bull v. Albright, 6 Div. 56
    • United States
    • Supreme Court of Alabama
    • June 22, 1950
    ...Code 1940, do not seem to apply. It is therefore only a common law undertaking and suit on it must be based accordingly. Ingram v. Evans, 227 Ala. 14, 148 So. 593; Calhoun v. Lunsford, 4 Port. 345; 46 Corpus Juris 1076, note 42; 43 Am.Jur. 206, note 11; Howard v. United States, 184 U.S. 676......
  • Request a trial to view additional results

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