State v. Schaper

• Decision Date: 06 February 1911
• Citation: 152 Mo. App. 538,134 S.W. 671
• Parties: STATE ex rel. ZIMMERMAN v. SCHAPER et al.
• Court: Missouri Court of Appeals

134 S.W. 671

152 Mo. A. 538

STATE ex rel. ZIMMERMAN v. SCHAPER et al.

Springfield Court of Appeals. Missouri.

February 6, 1911.

Rehearing Denied February 6, 1911.

1. SHERIFFS AND CONSTABLES (§ 157)—LIABILITY ON BOND.

Rev. St. 1909, § 5325, provides that when property claimed to have been stolen or obtained by any of the modes specified in the article, relating to offenses against public and private property, comes into the custody of any constable, he shall hold it subject to the order of the officer authorized to dispose thereof. Held, that it was not the official duty of a constable to store dynamite, taken upon arresting certain persons for having dangerous explosives concealed in a dwelling house, where it was not claimed that such dynamite was stolen, etc., as provided by the statute, so that the sureties upon his bond, conditioned upon his discharge of the duties of constable according to law, were not liable for injuries caused by the explosion of such dynamite by the negligent storing of it by the constable.

2. PRINCIPAL AND SURETY (§ 66)—CONSTRUCTION OF BOND.

A surety's obligation cannot be extended to other subjects, persons, or periods of time than

those expressed or necessarily included in his contract.

3. SHERIFFS AND CONSTABLES (§ 157)—LIABILITY ON BOND.

The sureties of a public officer are only responsible for his performance of the duties imposed on him by law.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by the State, on the relation of one Zimmerman, by Hubert H. Frank, against John F. Schaper and others. From a judgment of nonsuit, plaintiff appeals. Affirmed.

L. Frank Ottofy, for appellant. R. L. Johnson and R. L. Shackelford, for respondents.

GRAY, J.

This is an action commenced on the 16th day of August, 1907, on the official bond of John F. Schaper, constable of Carondelet township, in St. Louis county, to recover $5,000 for the death of Albert F. Zimmerman. The circuit court refused to submit plaintiff's case to the jury, and the cause is here on plaintiff's appeal.

The evidence tended to prove that some time prior to the death of the deceased, which occurred on the 28th day of April, 1907, the deputy constable had arrested some parties charged with the offense of having dangerous explosives concealed in a dwelling place or usual place of abode. When the officer arrested the parties, they had in their possession a quantity of dynamite. The officer took it from them and deposited it in a building in a locality which was thickly settled and inhabited by a large number of persons. On the 26th day of April, 1907, the justice discharged the parties, and no further proceedings were pending against them. On the 28th day of April, a fire broke out in the building adjoining the one in which the dynamite was stored. The deceased appeared at the place of the fire as a member of the fire department, for the purpose of assisting in extinguishing the fire. While the members of the fire department and others were trying to extinguish the fire, the dynamite exploded, on account of the fire, and Zimmerman received injuries from which he died.

The petition alleged that Christian Noerper was a justice of the peace, and that certain persons were brought before him charged with the crime of larceny, and that their trial was postponed, and that a large quantity of dynamite and dynamite caps, which were dangerous explosives, were required before the said justice as evidence of the said crime, and that the defendant, in the discharge of his duties as constable, took charge of the said dynamite to hold the same as evidence against the persons suspected of having...