Tabor v. McKenzie

• Decision Date: 21 April 1932
• Docket Number: No. 1182.,1182.
• Citation: 49 S.W.2d 874
• Parties: TABOR v. McKENZIE, Sheriff, et al.
• Court: Texas Court of Appeals

49 S.W.2d 874

TABOR v. McKENZIE, Sheriff, et al.

No. 1182.

Court of Civil Appeals of Texas. Waco.

April 21, 1932.

Appeal from District Court, Limestone County; Scott Field, Special Judge.

Suit by Walter Tabor against A. B. McKenzie, Sheriff of Limestone County, and another. From a judgment for defendants, plaintiff appeals.

Reversed and remanded.

A. M. Blackmon, of Groesbeck, and A. B. Geppert, of Teague, for appellant.

Carl Cannon, L. W. Shepperd, and C. S. & J. E. Bradley, all of Groesbeck, for appellees.

GALLAGHER, C. J.

This suit was instituted by appellant, Walter Tabor, against appellee A. B. McKenzie, sheriff of Limestone county, and the American Surety Company of New York, a corporation, surety on his official bond, to recover damages for personal injuries suffered by him as the result of a shot fired by appellee McKenzie, or certain of his deputies, in attempting to effect his arrest.

The case was submitted on special issues. The issues submitted by the court and the answers of the jury thereto were as follows:

"No. 1: Was the plaintiff, Walter Tabor, shot by either A. B. McKenzie, sheriff of Limestone county, Will Adams, deputy sheriff of Limestone county, or Wiley Sims, deputy sheriff of Limestone county, while such officers were in the act of effecting his arrest? Answer: Yes.

"No. 2: What amount of money, if paid in cash at this time, will adequately compensate the plaintiff, Walter Tabor, for the damages, if any, by him sustained by reason of the injuries, if any, inflicted on the occasion in question by either A. B. McKenzie, acting as sheriff, or by either Will Adams or Wiley Sims, at the time acting in their official capacity as deputy sheriffs, respectively? Answer: None."

The court, at the request of appellant, submitted his special issue No. 1, which issue and the answer of the jury thereto were as follows: "No. 1: Did A. B. McKenzie, Will Adams, Wiley Sims, or either of them, in attempting to arrest plaintiff, shoot plaintiff and inflict the injuries complained of, while he, plaintiff, was fleeing, or running from said officers to evade arrest? Answer: No."

The court, at the request of appellees, submitted their special issues Nos. 3 and 4, which issues and the answers of the jury thereto were as follows:

"No. 3: Was the act of A. B. McKenzie, Wiley Sims and Will Adams, or either of them, in shooting at the time and in the manner they did shoot, under all of the existing circumstances, negligence, which negligence, if any, was the proximate cause of the injury to plaintiff? Answer: No.

"No. 4: Was the act of one of the shots fired by A. B. McKenzie, Will Adams or Wiley Sims, striking plaintiff and injuring him, if one of them did strike him, an accident or unforeseen result of such shooting and not a natural and probable result of such shooting and reasonably to have been expected under all of the circumstances? Answer: Yes."

The court entered judgment on the verdict for appellees.

Opinion.

Appellee McKenzie contends that the testimony in this case shows as a matter of law that appellant's cause of action, if any, was barred by the statute of limitation of two years, and that the judgment of the trial court should be affirmed on that ground, regardless of errors, if any, in the trial of the case. While this issue was not presented to the trial court for determination, in view of the fact that the judgment will be reversed, we deem it proper to pass upon the same. Appellant was shot November 2, 1928. This suit was filed October 27, 1930. Citation was immediately issued, returnable to a term of court beginning November 3, 1930, but was permitted to remain in the office of the clerk without any attempt to place the same in the hands of an officer for service until November 8th, which date was after the return day of such citation and more than two years after said shooting. An alias citation, returnable to a subsequent term of court, was then issued and promptly served. Appellee's specific contention is that the testimony failed to show any reasonable excuse for appellant's failure to place the original citation in the hands of an officer for service. Appellant introduced testimony of circumstances tending to explain and extenuate the delay. The issue, therefore, became one of fact, and appellee, not having invoked a finding thereon, waived the same. Gulf, C. & S. F. Ry. Co. v. Flatt (Tex. Civ. App.) 36 S. W. 1029, 1031; Panhandle & S. F. Ry. Co. v. Hubbard (Tex. Civ. App.) 190 S. W. 793, 794, par. 3, and authorities there cited; Forrest v. Orange Printing Co. (Tex. Civ. App.) 43 S.W.(2d) 132, 133. Appellant, however, sued on appellee McKenzie's official bond, which was signed both by him and his surety. While the trespass upon appellant's person was an essential element of his cause of action, the liability sought to be enforced against appellees arose from their contract, evidenced by such bond, and his action was really founded thereon. Lasater v. Waits, 95 Tex. 553, 555, 68 S. W. 500; Fox v. Cone, 118 Tex. 212, 215, 216, 13 S.W.(2d) 65, 66, 67. Appellant's cause of action being founded on a contract in writing, the two years statute of limitation constituted no bar thereto.

Appellee American Surety Company of New York assails appellant's right to maintain an action on said official bond for redress for his injuries. Said bond was dated December 15, 1926, and covered a two-year term of office, beginning January 1, 1927, during which term appellant sustained the injuries complained of herein. It was made payable to the Governor and his successors in office and conditioned as required by law. Such conditions were, in substance, that appellee McKenzie would account for and pay over, to persons authorized by law to receive the same, all moneys collected, that he would execute and return all lawful process, and faithfully perform all the duties required of him by law. Said surety contends in this connection that an action can be maintained on an official bond by one not named therein only when the right to do so is conferred by statute, either in express terms or by necessary intendment, and that no such statute existed at the time appellant's cause of action arose, nor at the time of trial herein. The identical issue presented by such contention was considered by the Circuit Court of Appeals of the United States for the Fifth Circuit, in an appeal from the District Court for the Northern District of Texas, in Bracken v. Cato, 54 F.(2d) 457, 458. In that case the injured parties sued in their own names on a sheriff's bond for the death of a prisoner at the hands of one of his deputies. The injuries resulting in the death of the prisoner were inflicted in October, 1928, and the legal status of the plaintiffs' cause of action in that case was the same as appellant's in this case. The trial court instructed a verdict in favor of the sheriff and his surety. The complainants prosecuted an appeal to the Circuit Court of Appeals, which reversed the judgment of the trial court and remanded the cause. We quote from the opinion of the court in that case as follows: "Prior to the revision of the statutes of Texas in 1925, it was provided that a sheriff's bond `shall not be void on the first recovery, but may be sued on from time to time in the name of any person injured until the whole amount thereof is recovered.' Revised Civil Statutes of 1911, art. 7121. In the revision of 1925, that article was retained as article 6866, but there was omitted from it the language just above quoted. However, a separate provision was inserted as article 6003, which reads: `No official bond shall be void upon first recovery but may be sued upon in separate actions until exhausted.' There was thus omitted in the revision of 1925 nothing of substance except the words `in the name of any person injured'; but those words were restored in 1931. Acts 42nd Leg. (1931), c. 260, § 1, Vernon's Ann. Civ. St. art. 6866. It is true, therefore, that at the time this suit was brought there was no express statutory authority for bringing it in the name of the plaintiffs. But we are of opinion that none was necessary. It is provided by statute that, `whenever an official bond is made payable to the State of Texas, or any officer thereof, and a recovery thereon is authorized by, or would inure to the benefit of parties other than the State, suit may be brought on such bond in the name of the State alone for the benefit of all parties entitled to recover thereon.' Article 1991. This statute was clearly intended to be permissive and not mandatory. It was held to be so by the Court of Civil Appeals of Texas in Eastland County v. Hazel, 288 S. W. 518, where it is said that suit on an official bond can be brought in the name of the real parties in interest. The decisions of the Supreme Court of Texas there cited sustain, in principle at least, the conclusion arrived at, which seems to us to be a sound one. At any rate, the matter being merely procedural, the right to proceed in their own names has now been restored to the plaintiffs by the Legislature." See, also, in this connection, Eastland County v. Hazel, cited in the above excerpt, and the authorities referred to therein. Our own Supreme Court refused a writ of error in that case. See, further, Howard v. United States, 184 U. S. 676, 22 S. Ct. 543, 548, 46 L. Ed. 754, par. 3; Lynch v. Burgess, 40 Wyo. 30, 273 P. 691, 62 A. L. R. 849. We do not think that the committee of eminent lawyers who prepared the revision of the statutes under consideration should be presumed to have intended to make such a radical change in our statutory law as to exempt sheriffs and constables from liability on their respective official bonds for damages to individual citizens for trespasses on their persons or property. Neither do we think such intent must necessarily be attributed to the Legislature in enacting such statutes. We think that a right in any person suffering such injury to...