Maryland Casualty Co. v. Alford, No. 1946.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtPHILLIPS, BRATTON, and HUXMAN, Circuit
Citation111 F.2d 388
Decision Date22 May 1940
Docket NumberNo. 1946.
PartiesMARYLAND CASUALTY CO. v. ALFORD (two cases).

111 F.2d 388 (1940)

MARYLAND CASUALTY CO.
v.
ALFORD (two cases).

No. 1946.

Circuit Court of Appeals, Tenth Circuit.

April 5, 1940.

Rehearing Denied May 22, 1940.


111 F.2d 389

W. E. Green and Robert J. Woolsey, both of Tulsa, Okl. (J. C. Farmer, of Tulsa, Okl., on the briefs), for appellant.

John M. Goldesberry, of Tulsa, Okl. (Gerald B. Klein, of Tulsa, Okl., Gaylord R. Wilcox, of Sapulpa, Okl., and Johnson & Jones, of Bristow, Okl., on the brief), for appellee.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

PHILLIPS, Circuit Judge.

This is an action brought by Earl D. Alford, as administrator of the estate of Frederick W. Weidman, deceased, against Dave McConnell and the Maryland Casualty Company, hereinafter referred to as the Casualty Company. From a judgment for $5,584.52 against McConnell and the Casualty Company, the Casualty Company has appealed.

In a companion case brought by Alford, as administrator of the estate of Mamie M. Weidman, deceased, against McConnell and the Casualty Company and in the trial court consolidated with the instant case, a verdict for $5,378.31 was returned against McConnell and the Casualty Company. From a judgment on that verdict, the Casualty Company also appealed. The latter appeal is numbered 1947 on our docket.

After the appeals reached this court, it was stipulated that they should be consolidated and that the decision in the instant case should govern the decision in 1947.

McConnell was superintendent of the Bureau of Criminal Identification and Investigation. The Bureau has its office in the State Capitol at Oklahoma City, Oklahoma. It was created by ch. 127, O.Sess. Laws 1925, §§ 4731-4748, O.S.1931, 74 Okl. St.Ann. §§ 131-148, which provides that the Bureau shall consist of a superintendent, an assistant superintendent, three investigators, and a clerical staff; that the superintendent shall execute a bond to the state in the sum of $10,000, "conditioned for the faithful performance of his duties"; and that members of the Bureau are authorized and empowered to make arrests without warrants for violations of law committed in their presence, to serve and execute warrants issued by proper local authority, to exercise throughout the state the powers of sheriffs, constables, and municipal police officers, and to cooperate with county and municipal officers in the detection of crime, the apprehension of criminals, and the preservation of law and order throughout the state.

In accordance with the statutory requirement, McConnell, as principal, and the Maryland Casualty Company, as surety, executed an official bond to the state in the penal sum of $10,000. Both actions sought recovery on the bond.

The amended petition in the instant case contained three causes of action. On the first cause of action, recovery was sought for the wrongful death of Weidman. The second cause of action was dismissed. On the third cause of action, recovery was sought for injury to Weidman's automobile and for funeral expenses.

In the latter part of May, 1935, McConnell was detailed to investigate a mining strike at Pitcher and Miami, Oklahoma. Having completed his duties at Pitcher and Miami, he left Miami to return to his office at Oklahoma City. Other members of the Bureau in his charge accompanied him. They traveled in two automobiles. McConnell's automobile was the lead car. It was the practice of officers of the Bureau to return to the office of the Bureau in the Capitol when they had completed their duties at outlying points in the state. McConnell was transporting in his automobile to the office of the Bureau at Oklahoma City certain guns, ammunition, hand grenades, and other paraphernalia belonging to the Bureau.

At a point near Bristow a collision occurred between the McConnell and Weidman automobiles, resulting in the death of Frederick W. Weidman and Mamie M. Weidman. The evidence established negligence on the part of McConnell in that he was driving at an excessive rate of speed and that he drove across the center line over on to Weidman's side of the road immediately

111 F.2d 390
prior to the accident, and that such negligence on his part was the proximate cause of the injuries to and the death of the Weidmans

Under the weight of authority, a peace officer is liable on his official bond for wrongful acts done under color of his office.1 Some jurisdictions limit the liability to acts done by virtue of office.2 Oklahoma has adopted the broader rule. See McCorcle v. Morton, 171 Okl. 632, 44 P.2d 9.

In Meek v. Tilghman, 55 Okl. 208, 154 P. 1190, 1191, the court said:

"The defendants cite numerous authorities to the effect, that a peace officer's bondsmen are not liable for extra-official acts, and that before the bondsmen can be held liable it is necessary to allege and prove that the unlawful act was done under the color of office and while acting in the general line of his official duties. That is, we think, the correct rule, * * *".

Under the test laid down in the Meek case McConnell at the time of the accident was engaged in the performance of official duties and was acting under color of his office. He was not merely returning from Miami, where he had gone with his men to investigate the strike, to his office at Oklahoma City, but he was in charge of his men and was transporting to the office at Oklahoma City, property belonging to the Bureau. For these reasons, the instant case is distinguishable from Clement v. Dunn, 114 Cal.App. 60, 299 P. 545; Usrey v. Yarnell, 181 Ark. 804, 27 S.W.2d 988; McVea v. Day, 6 La.App. 382; Humphrey v. Ownby, Mo.App., 104 S.W.2d 398, relied on by counsel for the Casualty Company.

In transporting the property of the Bureau back to the Oklahoma City office, McConnell was acting officially and when, while so engaged, he drove his automobile negligently, he was acting under color of his office. True, in driving negligently he acted improperly. But if the fact that acts done under color of office were improper would excuse liability on the officer's official bond, it would never arise. See Brown v. Weaver, 76 Miss. 7, 23 So. 388, 42 L.R.A. 423, 71 Am.St.Rep. 512, cited with approval in Meek v. Tilghman, supra.

It is our conclusion, therefore, that the Casualty Company is liable on the bond for the wrongful death of Weidman and the damages to the Weidman automobile.

Section 95, O.S.1931, 12 Okl.St.Ann. § 76, in part reads as follows:

"When an officer, executor or administrator within this State, by misconduct or neglect of duty, forfeits his bond or renders his sureties liable, any person injured thereby, or who is, by law, entitled to the benefit of the security, may bring an action thereon in his own name, against the officer, executor or administrator and his sureties, to recover the amount to which he may be entitled by reason of the delinquency. * * *"

Section 96, O.S.1931, 12 Okl.St.Ann. § 77, reads as follows:

"A judgment in favor of a party for one delinquency does not preclude the same or another party from an action on the same security for another delinquency."

Section 9626, O.S.1931, 15 Okl.St.Ann. § 373, reads as follows:

"A surety cannot be held beyond the express terms of his contract, and if such contract prescribes a penalty for its breach, he cannot in any case be liable for more than the penalty."

Under the great weight of authority, a surety's...

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9 practice notes
  • Morrison Knudsen v. Ground Improvement, No. 06-1434.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 8, 2008
    ...in limited circumstances, a surety's liability cannot extend beyond the penal sum announced in the bond.6 See Maryland Cas. Co. v. Alford, 111 F.2d 388, 390 (10th Cir.1940) ("Under the great weight of authority, a surety's liability is limited by the penal sum named in the bond ...."); see ......
  • Griffin Wellpoint Corp. v. Engelhardt, Inc., No. 79-164
    • United States
    • United States Appellate Court of Illinois
    • December 26, 1980
    ...(E. g., Humphreys v. Leggett (1850), 9 How. (U.S.) 297, 50 U.S. 297, 13 L.Ed. 145; Maryland Casualty Co. v. Alford (10th Cir. 1940), 111 F.2d 388; United States v. Maryland Casualty Co. (Md.1955), 129 F.Supp. 45; Monmouth Lumber Co. v. Indemnity Insurance Co. (1956) 21 N.J. 439, 122 A.2d 60......
  • Grayson v. Linton, 6991
    • United States
    • United States State Supreme Court of Idaho
    • April 24, 1942
    ...11 S.E.2d 250 State v. Roth, 330 Mo. 105, 49 S.W.2d 109; City of Festus v. Kausler, (Mo.) 105 S.W.2d 646; Maryland Casualty Co. v. Alford, 111 F.2d 388; Anderson on Sheriffs, etc., Vol. 1, p. 57, sec. 62.) Judgment affirmed. Costs to respondent Grayson against Metropolitan Casualty Insuranc......
  • Allman v. Hanley, No. 18490.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 19, 1962
    ...office so long as he does not depart from the course of his duty so that it becomes his personal act. In Maryland Casualty Co. v. Alford, 111 F.2d 388 (10th Cir.1940), certiorari denied 311 U.S. 668, 61 S.Ct. 27, 85 L.Ed. 429, the Court said: "In transporting the property of the Bureau back......
  • Request a trial to view additional results
9 cases
  • Morrison Knudsen v. Ground Improvement, No. 06-1434.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 8, 2008
    ...in limited circumstances, a surety's liability cannot extend beyond the penal sum announced in the bond.6 See Maryland Cas. Co. v. Alford, 111 F.2d 388, 390 (10th Cir.1940) ("Under the great weight of authority, a surety's liability is limited by the penal sum named in the bond ...."); see ......
  • Griffin Wellpoint Corp. v. Engelhardt, Inc., No. 79-164
    • United States
    • United States Appellate Court of Illinois
    • December 26, 1980
    ...(E. g., Humphreys v. Leggett (1850), 9 How. (U.S.) 297, 50 U.S. 297, 13 L.Ed. 145; Maryland Casualty Co. v. Alford (10th Cir. 1940), 111 F.2d 388; United States v. Maryland Casualty Co. (Md.1955), 129 F.Supp. 45; Monmouth Lumber Co. v. Indemnity Insurance Co. (1956) 21 N.J. 439, 122 A.2d 60......
  • Grayson v. Linton, 6991
    • United States
    • United States State Supreme Court of Idaho
    • April 24, 1942
    ...11 S.E.2d 250 State v. Roth, 330 Mo. 105, 49 S.W.2d 109; City of Festus v. Kausler, (Mo.) 105 S.W.2d 646; Maryland Casualty Co. v. Alford, 111 F.2d 388; Anderson on Sheriffs, etc., Vol. 1, p. 57, sec. 62.) Judgment affirmed. Costs to respondent Grayson against Metropolitan Casualty Insuranc......
  • Allman v. Hanley, No. 18490.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 19, 1962
    ...office so long as he does not depart from the course of his duty so that it becomes his personal act. In Maryland Casualty Co. v. Alford, 111 F.2d 388 (10th Cir.1940), certiorari denied 311 U.S. 668, 61 S.Ct. 27, 85 L.Ed. 429, the Court said: "In transporting the property of the Bureau back......
  • Request a trial to view additional results

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