Nelson v. Bartell

• Decision Date: 25 May 1940
• Docket Number: 27651.
• Citation: 4 Wn.2d 174,103 P.2d 30
• Court: Washington Supreme Court
• Parties: NELSON v. BARTELL, Sheriff, et al.

103 P.2d 30

4 Wn.2d 174

NELSON v. BARTELL, Sheriff, et al.

No. 27651.

Supreme Court of Washington

May 25, 1940

Department 1.

Action for personal injuries by Lee E. Nelson, personally on his own behalf and as guardian ad litem of his minor son, Robert Lee Nelson, against Jeff Bartell, Sheriff, the Maryland Casualty Company, and others. From a judgment dismissing the Maryland Casualty Company from the action, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Grays Harbor County; William E Campbell, judge.

Frank L. Morgan of Hoquiam, and A. P. Wilson, of Montesano, for appellant.

Charles T. Peterson and Frank Hale, both of Tacoma, for respondents.

ROBINSON Justice.

In May 1938, Robert Lee Nelson, a twelve year old boy, was injured on a Montesano street by an automobile driven by Joe Cartell a deputy sheriff of Grays Harbor county. His father brought this action, on his own behalf and as his son's guardian ad litem, against Cartell, Grays Harbor County, its sheriff, and Maryland Casualty Company, surety on his official bond. The bonding company demurred for want of facts, the lower court sustained its demurrer, and a judgment was entered dismissing it from the action. This appeal is taken from that judgment, and the sole question presented is whether or not the demurrer of the bonding company was properly sustained.

Before stating the allegations of the complaint, it seems desirable to quote certain statutes upon which the right to recover on the bond must rest. The negligent act involved was that of a deputy sheriff. Rem.Rev.Stat. § 4160, provides as follows: 'Each sheriff may appoint as many deputies as he may think proper, for whose official acts he shall be responsible to the amount of their (his) bond, and may revoke such appointments at his pleasure; and persons may also be deputed by any sheriff in writing to do particular acts; and the sheriff shall be responsible on his official bond for the default or misconduct in office of his deputies.' (Italics above and elsewhere in this opinion are supplied.)

Hence, to recover in such an action, the complaint must state facts showing that the negligent act relied upon constituted, upon the part of the deputy, a 'default or misconduct in office.' This is further emphasized by the statute providing for official bonds. Rem.Rev.Stat. § 9931. The bond is made obligatory on principal and surety for the faithful discharge of all duties required of the officer by law.

'§ 9931. Every official bond executed by any officer pursuant to law shall be deemed and taken to be in force, and shall be obligatory upon the principal and sureties therein for any and all breach of the condition or conditions thereof committed during the time such officer shall continue to discharge any of the duties of or hold such office, and every such bond shall be deemed to be in force and obligatory upon the principal and sureties therein for the faithful discharge of all duties which may be required of such officer by any law enacted subsequent to the execution of such bond, and such condition shall be expressed therein.'

And the same requirement appears in the next section: '§ 9932. Every official bond executed by any officer pursuant to law shall be in force and obligatory upon the principal and sureties therein to and for the state of Washington, and to and for the use and benefit of all persons who may be injured or aggrieved by the wrongful act or default of such officer in his official capacity, and any person so injured or aggrieved may bring suit on such bond in his or her own name without an assignment thereof.'

That is to say, the bond may be sued upon by persons injured or aggrieved 'by the wrongful act or default of such officer in his official capacity.'

It is the official duty of deputy sheriff, as prescribed in Rem.Rev.Stat.§ 4167, to '* * * serve or execute, according to law, all process, writs, precepts, and orders, * * * to him directed, and he shall attend upon all courts of record at every session.'

Paragraph VIII of appellant's complaint is as follows: 'That on or about the 17th day of May, 1938, the Superior Court of the State of Washington for Grays Harbor County was holding a jury term of court; that the Sheriff of Grays Harbor County, through and in the person of the defendant, Joe Cartell, was in attendance of said session of Court, it being a Court of Record, and had been by said Court commanded to serve certain subpoenas on witnesses in a certain criminal action then on trial, to-wit: State v. Parker, cause No. 34522, they being lawful orders. The execution of which order and the service of said subpoenas required Cartell to go to and return from the City of Aberdeen, and in doing so, the best interest of the court and the Sheriff's office required Cartell to use an automobile in the execution of the court's orders and the service of said subpoenas; that Cartell, while on said errand and while engaged in carrying out the lawful orders of the court, drove and operated said automobile in a northerly direction on South First Street in Montesano, between Marcey Avenue and Broadway Street, at a rate of speed greater than was then and there safe under all the surrounding and attending facts and circumstances then and there prevailing, to-wit: in excess of 40 miles per hour; he, Cartell, having failed to operate said automobile in a careful and prudent manner and at a speed reasonable under the conditions existing at said time and place, taking into account the amount of and character of traffic and the obstruction to view ahead along said street so as to unduly endanger the life, limb and property of other persons, in particular Robert Lee Nelson, who was then and there traveling on said First Street, and negligently drove and operated said automobile so as to come into violent collision with Robert Lee Nelson and inflict on him great physical and mental pain, anguish, suffering and damage, permanently injuring said child.'

The appellant states another fact in his brief, not pleaded, or, at least, not clearly so: 'The allegations of the complaint as to the official character of the sheriff, his deputy Cartell, and the bonding company, are in the usual form. The Deputy Cartell had been to Aberdeen to serve subpoenas in a criminal case, and was returning to his duties Before the Superior Court in Montesano when he collided with the newsboy on the street and injured him.'

The respondent also argues the case upon the premise that deputy Cartell had been to Aberdeen to serve a subpoena and was returning to his duties Before the superior court when he collided with, and injured, young Nelson. We assume that this action of the parties amounts to a stipulation that this circumstance shall be given the same weight in our consideration of the case as if it had been expressly alleged in the complaint and admitted by the demurrer.

Respondent contends that the demurrer was correctly sustained on two theories: First, it is said that the bond can be resorted to only by the person with reference to whom the official act is being performed. For example, if a deputy were conveying a prisoner to jail and drove at a wildly reckless speed and overturned, injuring the prisoner and, at the same time, a pedestrian on the sidewalk, the prisoner might resort to the bond, but not the pedestrian. This contention is supported by a number of cases in other jurisdictions, of which the very recent case of Gray v. De Bretton, 192 La. 628, 188 So. 722, is perhaps, the most persuasive. A number of earlier decisions are collected and analyzed in a note in 19 A.L.R. 73, leading up to the following conclusion: 'The majority of the few decisions upon the question of the right of an individual to maintain an action upon the bond of a peace officer running to the public, and conditioned upon the faithful performance of his duties as a guardian of the law, are to the effect that such an action cannot be maintained by a stranger to the contract, such as an individual member of the public, to recover damages or penalty for injuries sustained by him at the hands of the officer; at least, in the absence of legislation expressly giving him a right of action on the bond. * * *'

We regard the question as foreclosed, however, by our own decisions. It is clearly held, in Greenius v. American Surety Co., 92 Wash. 401, 159 P. 384, L.R.A.1917F, 1134, that, in some instances at least, third parties injured by the misconduct of an officer, while performing an official act, can resort to the bond, and we do not feel at liberty to now depart from that rule.

The respondent's second contention is, and this appears to have been the theory adopted by the trial court, that the complaint does not allege facts showing that Cartell was performing an official act at the time he injured young Nelson. It is said that he was merely driving an automobile. In reply to this, appellant points out that it is alleged that he was engaged in the performance of the official duty of serving subpoenas, upon the order of the court. Respondent says he performed that act at Aberdeen. The appellant replies that the act was not completed until the deputy made his return of service to the court.

We think it will be realized, from what has been said, that a close question is presented by the respondent's second contention. It is to be answered wholly by statutory construction, for the doctrine of respondeat superior is in no way involved. As far as we have been advised by counsel and by our own researches, we have no decision in our reports which is at all decisive. We have not overlooked the case of Biehn v. Bannick, 166 Wash. 465, 7 P.2d 567. We do not regard it as decisive, because, in that case, the act of the deputy ...