Stephens v. Short, 1585

• Decision Date: 10 March 1930
• Docket Number: 1585
• Citation: 41 Wyo. 324,285 P. 797
• Parties: STEPHENS v. SHORT, ET AL. [*]
• Court: Wyoming Supreme Court

285 P. 797

41 Wyo. 324

STEPHENS v. SHORT, ET AL. ^[*]

No. 1585

Supreme Court of Wyoming

March 10, 1930

APPEAL from District Court, Hot Springs County; EDGAR H. FOURT Judge.

Action by Vaughn Stephens against George B. Short, administrator of the estate of Frank B. McFarlane, deceased, and the Massachusetts Bonding & Insurance Company. From judgment for plaintiff, defendants appeal.

Reversed.

For the appellants there was a brief by Fred Wyckoff of Thermopolis Wyoming, and Sterling M. Wood of Billings, Montana, and oral argument by Mr. Wood.

There was no competent evidence of negligence; plaintiff was incompetent to testify against the personal representative. 5807 C. S. Hubbell v. Hubbell, 22 O. S. 208; Edwards v. Edwards, 24 O. S. 402; Bamforth v Ihmsen, (Wyo.) 204 P. 345. The statute was adopted from Ohio and its decisions govern. Delfelder v. Bank, 38 Wyo. 481; Hilliard v. Oil Fields, 20 Wyo. 201; Wyoming Co. v. State, 15 Wyo. 97; Crumrine v. Reynolds, 13 Wyo. 111. The Bonding Company as surety of the sheriff under 1459 C. S. is not liable. Aucker v. Adams, 23 O. S. 543; U. S. F. & G. v. Co., (Ia.) 156 N.W. 727; American Surety Co. v. Dist., (Nebr.) 219 N.W. 583; Duke v. Co., (Wash.) 227 P. 2; Sauer v. Co., (Ky.) 234 S.W. 434, and cases cited. U. S. v. Bradley, 10 Pet. 343. The record does not show the acts complained of were done under color of office. Lynch v. Burgess, 273 P. 691; sufficient facts must be pleaded to show acts complained of were by virtue of or under color of office. People v. Beach, (Colo.) 113 P. 513; Hawkins v. Thomas, (Ind.) 29 N.E. 157; Murray v. Low, 8 F.2d 352; Jones v. Van Bever, (Ky.) 174 S.W. 795; People v. Co., (Colo.) 109 P. 961. 5649 C. S. The driver was a deputy sheriff, and not an undersheriff who shall be sheriff in case of death or resignation of the sheriff. 1465 C. S., Ch. 110, Laws 1925. Meecham's Public Office and Officers, 511; Throop 553; 46 C. J. 287; the duties of an undersheriff are fixed by statute. 1465 C. S., of deputy sheriffs by C. S. 1473, 1474 C. S. A deputy sheriff could not bind his principal by acts beyond the scope of his authority. Ivy v. Osborne, (Tenn.) 279 S.W. 384; Fidelity Co. v. Smith, (Ga.) 134 S.E. 801. A sheriff could not be liable for acts of an undersheriff. No claim was filed against the estate of the deceased sheriff upon the sheriff's official bond, hence neither appellant is liable in this suit upon that bond. 6887 C. S. Statute requires a copy of the instrument to be filed with claim. 6892 C. S. This was not done. Vanderpool v. Vanderpool, (Mont.) 138 P. 772; Burnett v. Neraal, (Mont.) 214 P. 955; Stockton Bank v. McCown, (Calif.) 150 P. 985; Delfelder v. Bank, 38 Wyo. 481; 11 Enc. P. and P. 847; respondent relies upon a joint liability of obligors, which was not established. There is a fatal variance in the proof as to the claimed acts of negligence relied on; where joint liability is charged, it must be proven. 45 C. J. 1129; Sturzebecker v. Co., (Pa.) 60 A. 583; Forsell v. Company, (Mont.) 100 P. 218. Neither appellant is liable in tort for the negligence pleaded. The official bond was for $ 4,000.00, hence it was error to enter judgment against the surety company for $ 10,300.00. 32 Cyc. 121; 1 C. J. 195. Appellant bonding company was not sued as a joint tort-feasor, and is not liable in this action. Pollock 10th Ed. 64; Letson v. Brown, (Colo.) 52 P. 287. An action for personal injuries resulting from alleged negligence cannot be maintained in Wyoming against personal representative of wrongdoer. 4547 C. S. The action does not survive under Sec. 5559 C. S. The action was brought after the death of the sheriff so Sec. 5747 C. S. cannot apply. The requirements of Sec. 5581 C. S. are not met by suing the representative of one obligor under the official bond in tort for negligence, and the other obligor upon the contrary. 20 C. J. 38. In this case respondent elected to sue in tort. The judgment should be set aside.

For the respondent there was a brief and oral argument by C. A. Zaring of Basin, Wyoming, and Lin I. Noble of Thermopolis, Wyoming.

The sheriff in placing respondent under arrest is acting in his official capacity assisted by the undersheriff and Goodfellow. The acts of the undersheriff are the acts of the sheriff for which his sheriff and his surety are answerable. Taylor v. Parker, 43 Wis. 78. The evidence of plaintiff was competent. Hunt v. Gaylor, 25 O. St. 620; 46 C. J. 1079; Heppe v. Johnson, 14 P. 833; Dishneau v. Newton, (Wis.) 64 N.W. 879. The bond is a joint and several obligation. 1459, 5581 and 5596 C. S.; State v. McDonald, 40 P. 312; Hermann v. Bank, 10 O. S. 445. The sheriff was acting under a warrant having plaintiff and others in custody, and through negligence ran the automobile over an embankment. The sheriff and his assistants are liable. 1465, 1387, 1388 and 1390 C. S. A sheriff is responsible for the safety of his prisoners. Indiana v. Gobin, 94 F. 48; McPhee v. U. S. F. & G. Co., (Wash.) 21 L. R. A. (N. S.) 535; 35 Cyc. 1942. A claim was filed against the sheriff's estate; but failure to file a claim would not release the surety company. Bell v. Walker, 74 N.W. 617. This is not an action of tort. It is an action against a sheriff and his surety for a breach of official duties. Koski v. Pakkala, 141 N.W. 793.

Fred Wyckoff and Sterling M. Wood in reply.

The case of Aucker v. Adams and Ford, 23 O. S. 543, construing the Ohio statute adopted here disposes of the question as to whether this is a joint action under Sec. 5581 C. S., held by this court to be a special remedial statute. Rothwell v. Knight, 37 Wyo. 11. The Aucker case was not overruled by Hunt v. Gaylord as contended. Promises are presumed to be joint unless a contrary intention be shown in the instrument. Clements v. Miller, (N. D.) 100 N.W. 239; Turley v. Thomas, (Nev.) 101 P. 568; Hill v. Combs, 92 Mo.App. 242. Both the administrator and the surety company are necessary parties. Fisher v. Hopkins, 4 Wyo. 379. This is a joint action if deemed to have been brought upon the bond. Lynch v. Burgess, (Wyo.) 273 P. 691; Hartney v. Gosling, 10 Wyo. 346, 33 C. J. 1115. The evidence of Vaughn Stephens was incompetent. Hubbell v. Hubbell, 22 O. S. 208; Bamforth v. Ihmsen, 28 Wyo. 282. Respondent's pleading clearly shows the theory of his action to be in tort. Van Oss v. Synon, 85 Wis. 661. If it were on the sheriff's bond, it would be limited to $ 4,000.00. U. S. v. Co., 260 U.S. 290. In electing to sue in tort plaintiff waived action on the bond.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

A proceeding by direct appeal from a judgment of the District Court of Hot Springs County, in favor of Vaughn Stephens, plaintiff and respondent, brings this cause here for review. The case appears to have been tried twice, the jury in the first trial disagreeing and the judgment in question being entered upon the verdict of the jury rendered upon the second submission. The defendants and appellants, George B. Short, as administrator of the estate of Frank B. McFarlane, deceased, and Massachusetts Bonding and Insurance Company, a corporation, will be mentioned hereinafter either as the "administrator" and the "surety" respectively, or generally as the "defendants"; while the plaintiff and respondent will be referred to as the "plaintiff."

The action in the court below was brought by plaintiff upon the official bond of Frank B. McFarlane, as sheriff of Hot Springs County, Wyoming. The defendants were severally the duly qualified administrator of his estate and the surety upon said bond. That obligation was in the penal sum of $ 4,000, and one of the conditions of the instrument demanded by the statute under which it was given (Sec. 1459, C. S. Wyo. 1920) and appearing therein was that McFarlane, as sheriff of said county of Hot Springs, should "faithfully perform the duties of sheriff of said county as required by law." Plaintiff's cause of action was grounded upon alleged negligence on the part of McFarlane as sheriff and one Ed Goodfellow, his undersheriff, in asserted violation of this condition of the bond, whereby plaintiff suffered severe injuries to his damage in an alleged amount more than double its penalty. A claim for damages in this sum was presented to the administrator and by him rejected, and these facts were duly pleaded in plaintiff's petition. The particular acts of negligence in substance alleged by plaintiff were that the sheriff and undersheriff, being required by law to exercise ordinary and reasonable care for the safety of plaintiff while in their custody and while he was being officially taken in their car to Thermopolis, Wyoming, negligently and carelessly operated the automobile so that it was precipitated over the edge of a ravine and plaintiff injured.

The defendants by their answer put in issue the negligence charged, admitting the execution of the bond and its terms, as well as most of the details of the transaction leading up to the accident out of which plaintiff's injuries arose.

On the trial the proofs on plaintiff's behalf--the defendants not introducing any evidence whatsoever--showed in the main the following state of facts:

Pursuant to a sworn complaint, a criminal warrant had been, on August 21, 1927, issued by a justice of the peace of Hot Springs County, Wyoming, directing Sheriff McFarlane to arrest the plaintiff and Cal Stephens, his father, and to bring them before the justice to answer a charge of grand larceny. Thereafter and on August 23, 1927, McFarlane and Ed Goodfellow, his undersheriff, proceeded to execute this warrant. They drove in an automobile seven or eight miles easterly from the town of Thermopolis, Wyoming, to an oil lease where plaintiff and his father were...