State ex rel. Kaercher v. Roth, No. 30050.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWesthues
Citation49 S.W.2d 109
PartiesSTATE OF MISSOURI, at the Relation and to the Use of AUSTIN W. KAERCHER, Appellant, v. GEORGE J. ROTH and SOUTHERN SURETY COMPANY, a Corporation.
Decision Date08 April 1932
Docket NumberNo. 30050.
49 S.W.2d 109
STATE OF MISSOURI, at the Relation and to the Use of AUSTIN W. KAERCHER, Appellant,
v.
GEORGE J. ROTH and SOUTHERN SURETY COMPANY, a Corporation.
No. 30050.
Supreme Court of Missouri, Division Two.
April 8, 1932.

Appeal from Circuit Court of St. Louis County.Hon. Julius R. Nolte, Judge.

REVERSED AND REMANDED.

Roberts P. Elam and Charles B. Williams for appellant.

(1) The defendant, George J. Roth, as constable of Central Township, St. Louis County, is liable for the wrongful and illegal acts of his deputy, William Skow, in assaulting and injuring the relator in the city of St. Louis, said acts having been done under color of office. State ex rel. Russell v. Moore, 19 Mo. 371; State ex rel. Gehring v. Claudius, 1 Mo. App. 551; State ex rel. Central Type, etc., Co. v. Moore, 72 Mo. 285; State ex rel. O'Donnell v. Boepple, 198 Mo. App. 63, 198 S.W. 502; R.S. 1919, sec. 2149; Edgin v. Talley, 169 Ark. 667, 276 S.W. 591; 35 Cyc. 1618; Harrington v. Fuller, 18 Me. 277, 36 Am. Dec. 720; Knowlton v. Bartlett, 1 Pick. (Mass.) 273; Bostatter v. Hinchman, 243 Mich. 589, 220 N.W. 775; Reichman v. Harris, 252 Fed. 384; Geros v. Harries, 236 Pac. (Utah) 220; Jackson v. Harries, 65 Utah, 282, 236 Pac. 234; Lee v. Charmley, 20 N.D. 570, 129 N.W. 448; Jahns v. Clark, 138 Wash. 288, 244 Pac. 729; Crose v. John, 96 Wash. 216, 164 Pac. 941; Brown v. Weaver, 76 Miss. 7, 23 So. 388; Meek v. Tilghman, 55 Okla. 208, 154 Pac. 1190; Corder v. People, 287 Pac. (Colo.) 85; Dean v. Brannon, 104 So. (Miss.) 173; Towle v. Matheus, 130 Cal. 574, 62 Pac. 1064; West v. Cabell, 153 U.S. 78, 14 Sup. Ct. 752, 38 L. Ed. 643; Van Pelt v. Littler, 14 Cal. 194. (2) The defendant, Southern Surety Company, a corporation, as surety on the constable's official bond, is liable for the wrongful and illegal acts of the deputy constable in assaulting and injuring the relator in the city of St. Louis, the deputy constable's acts having been done under color of office. State ex rel. Burris v. Edmundson, 71 Mo. App. 172; State ex rel. Hartley v. Evans, 83 Mo. App. 301; Kansas City ex rel. Ochs v. Minor, 89 Mo. App. 617; Barada v. Inhabitants of Carondelet, 8 Mo. 644; Rollins v. State to use Duvall, 13 Mo. 437; State ex rel. Moutrey v. Muir, 20 Mo. 303; State use of Garrett v. Farmer, 21 Mo. 160; State to use, etc., v. Shacklett, 37 Mo. 280; Howard v. Clark, 43 Mo. 344; State ex rel. Rice v. Powell, 44 Mo. 436; State ex rel. Gates v. Fitzpatrick, 64 Mo. 185; Warrensburg v. Miller, 77 Mo. 56; Lewis v. Carson, 93 Mo. 587; State ex rel. Heitkamp v. Ryland, 163 Mo. 280; City of Lowell v. Parker, 10 Metc. (Mass.) 309; American Guaranty Co. v. McNiece, 111 Ohio St. 532, 146 N.E. 77; Lynch v. Burgess, 273 Pac. (Wyo.) 693; Kosowsky v. Fidelity & Deposit Co., etc., 245 Mich. 266, 222 N.W. 153; Drolesbaugh v. Hill, 64 Ohio St. 257, 60 N.E. 202; Yount v. Carney, 91 Iowa, 559, 60 N.W. 116; Hall v. Tierney, 89 Minn. 407, 95 N.W. 219; Seitner v. Ransom, 82 Minn. 404, 85 N.W. 158; State to use of Johnson v. Cunningham, 107 Miss. 140, 65 So. 115; Greenius v. Am. Surety Co., 92 Wash. 401, 159 Pac. 384; Clancy v. Kenworthy, 74 Iowa, 740, 35 N.W. 427; Greenburg v. People, 225 Ill. 174, 80 N.E. 100; Turner v. Sisson, 137 Mass. 191; State v. Walford, 11 Ind. App. 392, 39 N.E. 162; Lammon v. Feusier, 111 U.S. 17, 28 L. Ed. 337, 4 Sup. Ct. 286; Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794. The purpose of an official bond is to provide indemnity against malfeasance and misbehavior in public office, the misuse of powers belonging to the office, and the assumption, under guise of official action, of powers not belonging to it. 24 R.C.L. 956, sec. 50; 24 R.C.L. 965, 966, sec. 59. (3) The act of the deputy constable, William Skow, in assaulting and injuring the relator by shooting at the automobile in which the relator was a passenger, while attempting to arrest the driver thereof for a misdemeanor committed in the presence of the deputy constable, was a wrongful and illegal act, done under color of his office as such deputy constable, and the constable, the defendant, George J. Roth, and the surety on the constable's official bond, the defendant, Southern Surety Company, are liable therefor. State v. Gartland, 263 S.W. (Mo.) 169; State v. Grant, 76 Mo. 244; State v. McNally, 87 Mo. 652; Murfee on Sheriffs, sec. 1162; State v. McGehee, 274 S.W. (Mo.) 73; Gray v. Earls, 250 S.W. (Mo.) 567; State v. Dierberger, 96 Mo. 673; Bouvier's Law Dictionary (8 Ed.) "Color of Office;" Black's Law Dictionary, "Color of Office"; 11 C.J. 1225; Burrall v. Acker (N.Y.), 23 Wend. 606, 35 Am. Dec. 582; Cash v. People, 32 Ill. App. 250; Gomez v. Scanlon, 2 Cal. App. 579, 84 Pac. 50; Charles v. Haskins, 11 Iowa, 329; Turner v. Sisson, 137 Mass. 191; Johnson v. Williams, 111 Ky. 289, 63 S.W. 759.

J.L. Harlan and Wurdeman, Stevens & Hoester for respondents.

(1) The trial court committed no error in sustaining the separate demurrers of the defendants to plaintiff's amended petition. The jurisdiction of a constable is strictly limited by statute, and the acts complained of were admittedly out of the jurisdiction of the Constable of Central Township and were not done under colore officii. R. S 1919, sec. 2151; State v. Pritchett, 219 Mo. 696; State ex rel. v. May, 177 Mo. App. 717; Jordan v. Neer, 34 Okla. 400, 18 A.L.R. 200; Chandler v. Rutherford, 101 Fed. 774, 18 A.L.R. 200; State v. Mankin, 68 W. Va. 772, 18 A.L.R. 200; Bond v. Ward, 7 Mass. 123, 5 Am. Dec. 28, 1 A.L.R. 248; Jones v. Van Bever, 164 Ky. 80, L.R.A. 1915E, 172, 174 S.W. 795; People to the use of Tamplin v. Beach, 37 L.R.A. 873; York v. Commonwealth, 82 Ky. 360; Jones v. State, 26 Tex. App. 1, 9 S.W. 53; State ex rel. v. Duncan, 195 Mo. App. 551; State ex rel. v. May, 177 Mo. App. 723; Murfee on Sheriffs, sec. 1112, secs. 160-162. (2) The act of the deputy constable was clearly outside of any official capacity or color of office, and wholly extraterritorial. When Skow left the confines of his limited jurisdiction in St. Louis County and went into the city of St. Louis he became divested of all color of office and his acts were those of a mere volunteer. State v. McGehee, 274 S.W. 70; State v. Gartland, 263 S.W. 165; R.S. 1919, sec. 2151; 30 C.J. 41, par. 196; State ex rel. Brennan v. Dierker, 101 Mo. App. 636; Sanders v. Humphries, 70 So. 168, 143 La. 43; McLain v. Arnold, 174 Pac. 563, 73 Okla. 52; Tate v. Gaugh, 264 Fed. 892; Brown v. Wallace, 101 S.W. 1086, 12 L.R.A. (N.S.) 1019. (3) The obligation of a surety is not to be extended by implication beyond the terms of its contract and the engagement is entered into with reference to the law which defines the duties of the officer. It would be a palpable violation of the contract of surety to hold the defendant, the Southern Surety Company, for performance of duties of other than those assigned by law to a deputy sheriff, and for the tortious acts of the deputy committed outside of his township and in positive contravention of his duties as an officer. St. Louis v. Sickles, 52 Mo. 122. A constable's bond should be fairly construed and not extended by implication, the liability of sureties being strictissimi juris. State ex rel. v. May, 177 Mo. App. 717.

WESTHUES, C.


On March 30, 1929, an amended petition was filed, in this case, in the Circuit Court of St. Louis County. The suit was brought in the name of the State of Missouri, at the relation and to the use of Austin W. Kaercher against defendant, George J. Roth, constable of Central township, St. Louis County, and defendant, Southern Surety Company, a corporation, as surety on the bond of defendant, Roth. Plaintiff prayed twenty thousand dollars ($20,000) for damages, resulting from personal injuries received. Defendants filed separate demurrers, which alleged that the petition did not state a cause of action. The trial court sustained the demurrer of each defendant, and plaintiff refused to plead further. Thereupon judgment was entered against him. Plaintiff was unsuccessful in his motion for a new trial and appealed to this court.

Plaintiff's petition alleged the election of defendant, Roth, as constable of Central township; the execution of a bond, as required by law, with Roth as principal and defendant, Southern Surety Company, as surety. The petition also alleged Roth's appointment of William Skow, as deputy constable. Then followed the allegations of the petition that gave rise to the controversy in this case, and upon which the demurrers were sustained. These allegations are:

"Plaintiff states that the said bond executed as aforesaid by the said George J. Roth and Southern Surety Company was breached and broken in this: That on or about the 24th day of October, 1926, in the said Central Township, County of St. Louis and State of Missouri, the said William Skow, while acting by virtue and under color of his office as Deputy Constable to the said George Roth, as aforesaid, and in the course of his duties as such Deputy Constable, began the pursuit of an automobile in which relator, Austin W. Kaercher, was a passenger and attempted to arrest the driver of the said automobile for a misdemeanor then and there committed in said Central Township, County of St. Louis and State of Missouri, in the presence of the said Deputy Constable, William Skow; and the said driver of the said automobile fled from the said Deputy Constable; and the said Deputy Constable, William Skow, in attempting to make the arrest as aforesaid, hotly pursued the said driver...

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10 practice notes
  • State v. Browers, No. 40257.
    • United States
    • United States State Supreme Court of Missouri
    • November 10, 1947
    ...even though he was trying to escape, citing State v. McGehee, 308 Mo. 560, 274 S.W. 70 and State ex rel. Kaercher v. Roth, 330 Mo. 105, 49 S.W. 2d 109; and, also, since Blue had no right to arrest Irvin Browers, he had the right to resist such arrest with such force as was necessary to prev......
  • Jackson v. United States, No. 19247.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 18, 1969
    ...Schroeder, 220 Mo.App. 575, 287 S.W. 861, 863 (1926). To these one might add State ex rel. and to Use of Kaercher v. Roth, 330 Mo. 105, 49 S.W. 2d 109, 110 (1932); City of Advance ex rel. Henley v. Maryland Cas. Co., 302 S. W.2d 28, 31-32 (Mo.Sup. 1957); Hacker v. City of Potosi, 351 S.W.2d......
  • Grayson v. Linton, 6991
    • United States
    • United States State Supreme Court of Idaho
    • April 24, 1942
    ...4, 174 S.E. 485, 92 A. L. R. 1093; Hawkins v. National Surety Corporation, 63 Ga.App. 367, 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.......
  • State of Missouri v. Fidelity & Casualty Co., No. 11434.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 8, 1939
    ...Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. In State ex rel. and to Use of Kaercher v. Roth, 330 Mo. 105, 49 S.W.2d 109, the Supreme Court of Missouri, after carefully considering the changed attitude of the courts towards this question and reviewing the auth......
  • Request a trial to view additional results
10 cases
  • State v. Browers, No. 40257.
    • United States
    • United States State Supreme Court of Missouri
    • November 10, 1947
    ...even though he was trying to escape, citing State v. McGehee, 308 Mo. 560, 274 S.W. 70 and State ex rel. Kaercher v. Roth, 330 Mo. 105, 49 S.W. 2d 109; and, also, since Blue had no right to arrest Irvin Browers, he had the right to resist such arrest with such force as was necessary to prev......
  • Jackson v. United States, No. 19247.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 18, 1969
    ...Schroeder, 220 Mo.App. 575, 287 S.W. 861, 863 (1926). To these one might add State ex rel. and to Use of Kaercher v. Roth, 330 Mo. 105, 49 S.W. 2d 109, 110 (1932); City of Advance ex rel. Henley v. Maryland Cas. Co., 302 S. W.2d 28, 31-32 (Mo.Sup. 1957); Hacker v. City of Potosi, 351 S.W.2d......
  • Grayson v. Linton, 6991
    • United States
    • United States State Supreme Court of Idaho
    • April 24, 1942
    ...4, 174 S.E. 485, 92 A. L. R. 1093; Hawkins v. National Surety Corporation, 63 Ga.App. 367, 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.......
  • State of Missouri v. Fidelity & Casualty Co., No. 11434.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 8, 1939
    ...Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. In State ex rel. and to Use of Kaercher v. Roth, 330 Mo. 105, 49 S.W.2d 109, the Supreme Court of Missouri, after carefully considering the changed attitude of the courts towards this question and reviewing the auth......
  • Request a trial to view additional results

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