Moore v. Lindsay

• Decision Date: 13 December 1902
• Citation: 71 S.W. 298
• Parties: MOORE et al. v. LINDSAY et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

71 S.W. 298

MOORE et al. v. LINDSAY et al.^*

Court of Civil Appeals of Texas.

December 13, 1902.

Appeal from Lamar county court; Wm. Hodges, Judge.

Action by Minnie Moore and others against H. H. Lindsay and others. From a judgment sustaining the demurrer of the defendants other than Lindsay, plaintiffs appeal. Reversed.

Allen & Dohoney, for appellants. W. F. Moore, for appellees.

RAINEY, C. J.

The appellants, plaintiffs below, sued H. H. Lindsay, constable, and the sureties on his official bond to recover damages for the alleged wrongful and negligent act of the said Lindsay in killing I. L. Moore while he, Lindsay, was in the discharge of his duties in the execution of a warrant of arrest, said Moore being charged with a misdemeanor. A general demurrer of the sureties was sustained as to them, and the case was tried as to Lindsay, resulting in a verdict in favor of the wife and child as to him. The plaintiffs appeal from the judgment sustaining the demurrer of the sureties.

The sole question at issue is as to the liability of the sureties on the official bond of the constable for his wrongful and negligent killing while in the execution of a warrant of arrest. It is contended by the appellee that the sureties are not liable for the killing "for the reason that the statute of this state giving a right of action for injuries resulting in death does not authorize an action against the sureties because of such fact, and in such case a recovery can be had only against the officer whose immediate act caused the death, and appellants must of necessity base their right of recovery on the statute, for at common law there was no such thing as a right of action for injuries resulting in death." It is true that at common law no right of action for injuries resulting in death existed, and all actions for personal injuries ceased upon the death of the party injured. But our statutes give a right of action when the death of any person is caused by the wrongful act, etc., of another, and the statutes also provide for the survival of actions for personal injuries. The statutes giving a right of action for injuries resulting in death, it seems to us immaterial as to what the common law is in this respect. The constable, under the allegations of plaintiffs' petition, committed a wrongful and negligent act in killing Moore while in the official discharge of his duty in the execution of a warrant of arrest. The weight of authority is that, when an officer commits...