State for Use of Russell v. Mcrae

Decision Date26 February 1934
Docket Number31044
Citation169 Miss. 169,152 So. 826
CourtMississippi Supreme Court
PartiesSTATE FOR USE OF RUSSELL v. MCRAE et al

Division A

1. ABATEMENT AND REVIVAL.

In suit by state for use of another, death of use plaintiff after final judgment, but before appeal was taken, held not to abate right of appeal (Code 1930, sections 13, 517, 3384).

2 PLEADING.

Declaration against member of board of supervisors for alleged tort joining in same count surety on official bond held not demurrable as joining causes of action of tort and contract in one count (Code 1930, section 2889).

3 COUNTIES.

That official bond of member of board of supervisors was payable to county, instead of to state, as required by statute, did not exempt surety from liability thereon, since bond inured to benefit of persons whom law designated it to secure regardless of named obligee of bond (Code 1930, sections 197, 758, 2889).

4. AUTOMOBILES.

Declaration against member of board of supervisors and surety alleging that defendant left bridge which was being repaired in unsafe condition at night without warning signals, causing damage to plaintiff when he drove over bridge in automobile, held sufficient (Code 1930, sections 6381, 6398).

HON. D. M. ANDERSON, Judge.

APPEAL from circuit court of Rankin county, HON. D. M. ANDERSON, Judge.

Suit by the state, for the use of E. E. Russell, against J. W. McRae and another. Judgment of dismissal, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Alexander, Alexander & Satterfield and Bert Crisler, all of Jackson, for appellant.

This is a simple tort action, and is not a suit upon contract and tort.

Pierce v. Chapman, 143 So. 845.

The affirmative act by J. W. McRae performed under color of and by virtue of his office was a ministerial duty.

Walton v. Colmer, 147 So. 331; 15 C. J. 479.

Where the member of the board of supervisors, who has direct charge of the repair of the roads in his district decides that repairs shall be made and then proceeds to make the repairs himself, or by agents acting under his supervision and direction, he is liable for the improper performance of the ministerial act of repairing the bridge or building a new bridge to take the place of the one which was torn away.

22 R. C. L. 392; Mechem on Public Officers, par. 643.

The defendant as a member of the board of supervisors is liable for his affirmative act done by virtue of and under color or his office whereby a third person was injured.

Pierce v. Chapman, 143 So. 845; 22 R. C. L. 506, par. 190; Gerber v. Ackley, 37 Wis. 43, 19 Am. Rep. 751.

Our Supreme Court has frequently held the party who was directly responsible for the affirmative repair of the road to be liable for injury caused through a negligent repair.

Wade v. Gray, 104 Miss. 151, 61 So. 168; Sutton v. Carroll County, 41 Miss. 236; Lee v. Sills, 95 Miss. 623.

Where a suit is brought by one person for the use and benefit of another if either the nominal plaintiff or the beneficial usee remains, the suit may be carried to conclusion without substitution upon the record of the administrator or personal representative of the deceased party. In either case a proper person remains for the prosecution of the litigation.

Lee v. Gardiner, 26 Miss. 521; American Burial Case Co. v. Shaughnessy, 59 Miss. 398; Sec. 517, Code of 1930; New Orleans, etc., R. R. Co. v. Rollins, 36 Miss. 384; Mayer & Co. v. McLure, 36 Miss. 389.

We do not believe that counsel intends to seriously urge that the bond of J. W. McRae is not liable in this action, because it is payable to "Rankin county, state of Mississippi," rather than to "Rankin county and the state of Mississippi," or simply to the "state of Mississippi." Even if there is a serious discrepancy in the words actually used, this is cured by the sections of the code here involved which are sections 197, 2889 and 758 of the Code of 1930. See also section 2888 of the Code of 1930.

Green, Green & Jackson, of Jackson, and W. E. McIntyre, of Brandon, for appellees.

There is no right at common law or by statute for the administratrix of a plaintiff to prosecute an appeal from a final judgment against plaintiff.

On the death of either party at common law, an action for damages for personal injuries abated. After final judgment at common law the successful party in a suit for personal injuries might execute on a favorable judgment by scire facias. Any statute permitting the revival of an action which has abated by reason of the death of a party is in derogation of the common law and must be strictly construed.

1 C. J. 169; Section 3031, Mississippi Code 1930; Lee v. Gardiner, 26 Miss. 521, 541; Archer & Watson v. Stamps, 4 S. & M. 352; Chapman v. White Sewing Machine Co., 77 Miss. 890, 28 So. 749; American Burial Case Co. v. Shaughnessy, etc., 59 Miss. 398; Tucker v. Wilson, 68 Miss. 693, 9 So. 898; Reynolds v. Carter, 109 Miss. 314, 68 So. 467; Portevant v. Pendleton, 23 Miss. 25; Allen, etc. v. Mandaville, 26 Miss. 397; Wagner v. Gibbs, 80 Miss. 53, 31 So. 434; Humphreys v. Irvine, 6 S. & M. 205; Denton v. Stephens, 32 Miss. 194; Burns v. Stanton, 24 Miss. 580; New Orleans, etc., R. R. Co. v. Rollins, 36 Miss. 384; Lamar v. Williams, 39 Miss. 342; Morris v. Henderson, 37 Miss. 492; Criscoe v. Adams, 123 Miss. 37, 85 So. 119; McNeely v. Natchez, 148 Miss. 264, 114 So. 484; Leavenworth & Son v. Hunter, 116 So. 593, 150 Miss. 245; Florida East Coast Ry. Co. v. McRoberts, 149 So. 631, 635.

There are two causes of action--one in tort, one in contract.

As to the cause of action on the bond, the same is in the state of Mississippi for the use of plaintiff, whereas, as to the tort, the cause of action is in plaintiff personally.

Pierce v. Chapman, 143 So. 846; Railroad Co. v. Abrams, 84 Miss. 463; So. Ry. Co. v. Bunnell (Ala.), 36 So. 382; Hazlehurst v. Cumberland, etc., Co., 83 Miss. 305, 35 So. 951; Elder v. Hilzeheim, 35 Miss. 231; Hall v. Stokely, 126 So. 475; Home Ins. Co. v. Tate Mercantile Co., 78 So. 711.

This is essentially a suit against the sovereign.

Haley v. State, 108 Miss. 899, 67 So. 498; Broadus v. State, 132 Miss. 828, 96 So. 745; National Surety Co. v. Miller, 124 So. 251, 155 Miss. 115; United States v. Lee, 106 U.S. 196, 27 L.Ed. 171; United States v. Peters, 5 Cranch 115; Osborn v. Bank, 9 Wheat. 738; Grisar v. McDowell, 6 Wall. 363, 73 U. S. XVIII, 863; Brown v. Huger, 21 How. 305, 62 U. S. XVI, 125; Finnell v. Pitts (Ala.), 132 So. 2; 25 R. C. L., sec. 50, pp. 413, 414; 36 Cyc. 915, 916; Paxton v. Baum, 59 Miss. 536; Paxton v. Arthur, 60 Miss. 838; Bell v. McKinney, 63 Miss. 187; State v. Green, 71 So. 171; Kendall v. Stokes et al., 3 How. 87, 11 L.Ed. 506; Wilcox v. Williamson, 61 Miss. 310.

Liability of the surety upon the bond of McRae was not shown.

It will be noted that the declaration refers to a bond payable to the state of Mississippi, but the exhibit shows that the bond in this case is payable to Rankin county, Mississippi. The bond, therefore, is not the regular statutory bond, as required by section 197, Mississippi Code of 1930, and section 2888 and section 2889, Mississippi Code of 1930.

Had McRae been a contractor working upon the public road and there been this accident, while there would have been individual liability on McRae as a contractor, there would have been no liability upon his bond. Beginning with Sutton v. Board of Police, 41 Miss. 236, and continuing through Broom v. Supervisors, 54 Miss. 363, it has been well settled that a county is not liable for a defect in the road.

Redditt v. Wall, 55 So. 46; Iron Co. v. Leflore County, 99 So. 679; Stewart v. Highway Department, 148 So. 218; Wade v. Gray, 104 Miss. 163.

As the supervisor here at most could be claimed to stand in the position of one who had as a contractor undertaken thus to keep the road in condition, the admeasurement of the liability could be alone upon him individually, if it should so be, but not upon his bond, and as to him individually, we rely, with confidence, upon the rule of the cases cited in Wade v. Gray from Kentucky.

Blue Grass Traction Co. v. Grover, 135 Ky. 685, 123 S.W. 264, 135 Am. St. Rep. 498; Schneider v. Cahill (Ky.), 127 S.W. 143, 27 L. R. A. (N. S.) 1009; Raney v. Hinds County, 79 Miss. 241, 28 So. 876.

When the supervisor was acting as road commissioner in charge individually, the obligation on his bond was not recoverable, for in doing the work of a contractor he was not performing his constitutional function.

Alcorn v. State, 57 Miss. 273; Denio v. State, 60 Miss. 949; State v. Baker, 47 Miss. 88; Owens v. Baggett (Fla.), 81 So. 888; Lee v. Sills, 95 Miss. 623, 49 So. 259; Hipp v. Ferrall, 173 N.C. 167, 91 S.E. 831; 9 C. J. 469; 4 R. C. L. 229; Senthen v. Harrison Co., 172 Iowa 81, 152 N.W. 12; Youmans v. Thornton, 31 Idaho 10, 168 P. 1141.

Argued orally by J. C. Satterfield and Julian Alexander, for appellant, and by Forrest B. Jackson, for appellee.

OPINION

Cook, J.

This suit was instituted in the name of the state of Mississippi for the use of E. E. Russell, against J. W. McRae, a member of the board of supervisors of Rankin county, and the Hartford Accident & Indemnity Company, the surety on his bond as a member of such board. To the declaration separate demurrers were interposed by the defendants, which were sustained, and, upon the plaintiff declining to plead further, a final judgment was entered dismissing the cause and taxing the said E. E. Russell with all costs. Before any steps had been taken to perfect an appeal from this judgment, but within the time allowed for an appeal therefrom, the usee plaintiff died. Mrs. E. E. Russell, his widow, was duly appointed as administratrix of his estate, and thereupon she filed with...

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