Pigg v. Brockman, 8409

• Citation: 314 P.2d 609,79 Idaho 233
• Decision Date: 18 July 1957
• Docket Number: No. 8409,8409
• Parties: John PIGG, Plaintiff-Appellant, v. Dewey BROCKMAN, James Trummel, Eugene A. Hagler, and the State of Idaho, Defendants-Respondents.
• Court: United States State Supreme Court of Idaho

Page 609

314 P.2d 609

79 Idaho 233

John PIGG, Plaintiff-Appellant, v. Dewey BROCKMAN, James Trummel, Eugene A. Hagler, and the State of Idaho, Defendants-Respondents.

No. 8409.

Supreme Court of Idaho.

July 18, 1957.

Rehearing Denied Sept. 4, 1957.

Vernon K. Smith, Boise, for appellant.

J. F. Martin and C. Ben Martin, Boise, for defendant Hagler.

Benoit & Benoit, Twin Falls, for defendants Brockman and Trummel.

Graydon W. Smith, Atty. Gen., and T. J. Jones III, Asst. Atty. Gen., for the State.

TAYLOR, Justice.

Plaintiff (appellant) alleges he sustained injuries September 15, 1953, in a collision between his automobile and a tractor-trailer outfit owned by defendant Trummel and driven by defendant Brockman.

The Trummel vehicle consisted of a Studebaker tractor drawing a lowboy semitrailer upon which was loaded a caterpillar tractor and bulldozer. This equipment was moving east out of Jerome on highway 25 at about 7:00 o'clock p. m., allegedly in violation of law in that its total width exceeded that allowed and the left front headlamp on the tractor was not lighted.

Defendant (respondent) Hagler, a state police officer, observing the violation of the highway law by the operator of the tractor and trailer, stopped the driver about a half mile east of Jerome. He then parked the automobile, owned by the state and furnished to him for his use as a highway patrolman, on the south side of the highway in front of and to the east of the tractor-trailer in such position that the light from its headlamps reflected and extended diagonally across the highway to the northeast, and in such manner as to obstruct the vision of drivers coming from the east on the north half of the highway. The officer then took a position on the north edge of the highway and undertook to control the traffic coming from the east with lighted red baton held in his hand, while the operator of the tractor attempted to turn the vehicle to its left across the highway into a farm driveway on the north side of the highway. The unlighted left-hand corner of the tractor had crossed the center line a distance of approximately three feet, when plaintiff drove in from the east. He alleges he was blinded by the lights from the state car and the one lighted lamp on the tractor, and upon coming out from the glare of those lights he was suddenly confronted with the flashing of the red light in the hand of the officer, and, in attempting to miss that light, turned to the left and collided with the left front corner of the tractor.

Plaintiff brought this action to recover for personal injuries and damage to his automobile resulting from the collision.

After detailing the acts constituting negligence on the part of the owner and operator of the tractor and trailer, the complaint charges that defendants Hagler and state of Idaho were negligent in parking the state automobile in such manner that its headlights projected a dazzling beam of light into the face and eyes of the plaintiff traveling west on the north side of the highway.

Upon motion of defendant Hagler, a judgment dismissing the action as to him was entered upon the ground that plaintiff had failed and refused to give the written undertaking required by § 6-610, I.C., which provides as follows:

'Before any action may be filed against any sheriff, constable, peace officer, state police officer, or any other person charged with the duty of enforcement of the criminal laws of this state, or service of civil process, when such action arises out of, or in the course of the performance of his duty, or in any action upon the bond of any such officer, the proposed plaintiff, as a condition precedent thereto, shall prepare and file with, and at the time of filing the complaint in any such action, a written undertaking with at least two sufficient sureties in an amount to be fixed by the court conditioned upon the diligent prosecution of such action, and in the event judgment in the said cause shall be against the plaintiff, for the payment to the defendant of all costs and expenses that may be awarded against such plaintiff including a reasonable attorney's fee to be fixed by the court. In any such action, the prevailing party therein shall, in addition to an award of costs as otherwise provided, recover from the losing party therein such sum as counsel fees as shall be allowed by the court. The official bond of any such officer shall be liable for any such costs and attorney fees.'

Plaintiff alleges that the officer was acting in the course of, and within the scope of, his employment as a police officer of the state in preventing the driver of the tractor and trailer from operating the vehicle on the highway; that his negligence while so acting is the negligence of the state of Idaho, upon which the liability of the latter is predicated. However, to avoid the requirement of § 6-610 to give security for costs and counsel fees, he contends in his brief that the officer was not enforcing the criminal laws when he parked the state car in the manner complained of; that the act of parking the state car was not in the course of the performance of his duty. Disregarding the apparent inconsistency, the facts pleaded show the officer was engaged in the enforcement of the criminal law, and that the action arises out of the acts done in the course of the performance of his duty.

At the time the action was filed, the plaintiff declined to file the undertaking on the ground that the statute, § 6-610, I.C., requiring such undertaking, is unconstitutional. The action of the court in overruling that contention is assigned as error.

The requirement of the statute is not jurisdictional. The undertaking may be waived by the defendant. However, the statute is mandatory, so that where it is not complied with, the district court must dismiss the action when appropriate objection is timely urged by defendant. Kiesel v. District Court, 96 Utah 156, 84 P.2d 782; Sheldon v. Nick & Sons, 253 Wis. 162, 33 N.W.2d 260; Art. 5, § 20, Idaho Constitution; Clemens v. Kinsley, 72 Idaho 251, 239 P.2d 266; Shell Oil Co. v. Superior Ct., 2 Cal.App.2d 348, 37 P.2d 1078; Kennaley v. Superior Ct., 43 Cal.2d 512, 275 P.2d 1; 14 Am.Jur., Costs, § 44.

It is first contended that the requirement violates Article 1, § 18, of the constitution, which provides:

'Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice.'

Appellant urges that the statute violates this provision in requiring plaintiffs, who have a cause of action against a police officer, to file such undertaking as a condition precedent and thus limits their right of access to the courts; that it contains no standard for the fixing of the bond, but leaves the amount thereof in the unrestrained discretion of the trial court; and that the undertaking that plaintiff will diligently prosecute his action is discriminatory in that no such undertaking is required of the officer-defendant.

Appellant also urges that the act violates the equal protection clause of the Federal Constitution, 14th amendment, § 1, in the foregoing particulars and also in that the provision allowing attorney's fee to the prevailing party, and making the official bond of the officer liable for costs and attorney's fee, does not afford equal protection to plaintiffs in such cases, because not all of the officers named in the act are required to have or give an official bond.

In Ex parte Louisville & N. R. Co., 124 Ala. 547, 27 So. 239, and Ex parte Winn, 226 Ala. 447, 147 So. 625, the Alabama court held that a statute requiring a nonresident plaintiff to give security for costs is not repugnant to the Alabama constitutional provision, Art. 1, § 13, the same in effect as our Art. 1, § 18.

In Massachusetts a statute requiring a non-resident to furnish and endorser for costs was held constitutional. Keown v. Hughes, 233 Mass. 1, 123 N.E. 98.

In Harbison v. George, 228 Ky. 168, 14 S.W.2d 405, a Kentucky statute requiring the clerk of the court to collect $5 from the plaintiff at the commencement of an action as an advance on costs, was attacked as a violation of a constitutional provision similar to our Art. 1, § 18. The court said:

'Provisions in state statutes for the payment in advance of fees allowed by law, and incurred pending the litigation, do not contravene the rights guaranteed by such a constitutional provision.' 14 S.W.2d at page 406.

Violation of the same constitutional provision was urged against an Oklahoma statute requiring an advance payment to the clerk of the supreme court of $40 for docket fee and other costs. The court held the requirement was not a sale or denial of justice. In re Lee, 64 Okl. 310, 168 P. 53, L.R.A.1918B, 144. In the annotation appended to the report of this case, L.R.A.1918B, 150-1, the annotator has collected decisions from the various states upholding the constitutionality of statute requiring advance payment of costs as a condition to the right to litigate in the courts. It is there said:

'Nearly all state constitutions contain provisions adopted from the Magna Charta in substance and effect requiring justice to be administered without sale or delay. These provisions are construed with reference to the purpose of the original provision in Magna Charta, that to none will we sell, to none will we deny or delay the right of justice, to forbid the then prevailing practice of securing favorable decisions by the courts by making large presents to the King or the King's officers, or of securing delays in the trial of cases by means of such presents. Hence it is held that constitutional provisions of this character have no application to reasonable statutory requirements for the payment of court fees as a condition to the right to invoke the aid of the court to enforce a cause of action or secure redress for...