Tipton v. Hartford Accident & Indemnity Co.

• Decision Date: 19 September 1950
• Docket Number: Civ. No. 4796.
• Citation: 92 F. Supp. 624
• Parties: TIPTON v. HARTFORD ACCIDENT & INDEMNITY CO.
• Court: U.S. District Court — Western District of Oklahoma

92 F. Supp. 624

TIPTON v. HARTFORD ACCIDENT & INDEMNITY CO.

Civ. No. 4796.

United States District Court W. D. Oklahoma.

September 19, 1950.

J. D. Chastain and A. L. Beckett, Oklahoma City, Okl., for plaintiff.

Edgar Fenton (of Fenton, Fenton & Thompson), Oklahoma City, Okl., for defendant.

VAUGHT, Chief Judge.

This is an action to recover damages on an official bond. The complaint alleges that one Ralph A. Tennison was the duly elected sheriff of Garfield County, Oklahoma, from January 6, 1947 until January 3, 1949, and that the defendant corporation was his bondsman, as required by law, for his term of office. The condition of the bond was as follows: "Now, therefore, the condition of the above obligation is such, that if the above bounden Ralph A. Tennison shall, * * *, faithfully and truly perform all the duties of his office and shall pay over and account for all funds coming into his hands by virtue of his said office of Sheriff, County of Garfield, State of Oklahoma, as required by law, then this obligation to be void, otherwise to be and remain in full force and virtue."

On April 21, 1947, the plaintiff became a prisoner in the jail over which said sheriff had charge and custody, upon a charge of public drunkenness, being intoxicated to such a degree that he was irresponsible and irrational, and was so known to be by the jailer and the employees of said sheriff, who were then in actual charge of said jail and who took the plaintiff into custody.

It is further alleged that the sheriff violated the conditions of his bond in that he failed to perform faithfully and truly the duties of his office, which he owed the plaintiff under the law, in the following particulars. The plaintiff was placed in the "run-around," an open space surrounding the outside of the cells on the fifth floor of the building, along with other prisoners charged with various offenses. There was a metal chute extending from the run-around on the fifth floor of said building and ending on the concrete floor of the basement thereof, ordinarily used for the purpose of casting down trash, waste and garbage. Such chute was large enough to permit the passage of a human body and the opening thereto was not properly fastened, as was well known to the sheriff. On said 21st day of April, 1947, while so confined, the plaintiff either was forced into said chute or fell into it and as a result sustained serious injuries. All of which it is contended was due to the negligence of the sheriff in failing to perform his duties. Plaintiff seeks judgment against the defendant for the sum of $10,000, the amount of the bond.

The defendant filed its answer and, among other defenses, contends that the alleged action occurred more than three years before the commencement of the action and therefore is barred by the statute of limitations of the State of Oklahoma.

It is alleged the injury occurred April 12, 1947, and the complaint was filed May 3, 1950. Thus, if the three-year statute applies, the cause of action is barred by the statute.

The pertinent portion of the statute of limitations of the State of Oklahoma, 12 Okl.Stat.Ann. § 95, reads:

"Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:

"First. Within five years: An action upon any contract, agreement or promise in writing.

"Second. Within three years: An action upon a contract express or implied not in writing; an action upon a liability created by statute other than a forfeiture or penalty.

"Third. Within two years: An action for trespass upon real property; an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud."

* * * * * *

"Fifth. An action upon the official bond or undertaking of an executor, administrator, guardian, sheriff, or any other officer, or upon the bond or undertaking given in attachment, injunction, arrest or in any case whatever required by the statute, can only be brought within five years after the cause of action shall have accrued." (Emphasis supplied.)

The courts have become somewhat confused in their decisions concerning the fifth subdivision of the statute. There can be no doubt that the cause of action alleged would be governed either by subdivisions two or three if the cause had named the sheriff as the defendant, and recovery would be barred by the statute. It has long been a sound principle of law that if the action is barred against the principal, it is also barred against his surety, and there could be no doubt here except for subdivision five. The statute was adopted from Kansas and the Oklahoma Supreme Court has held many times that the interpretation given it by the Kansas Supreme Court would be followed. The principle was laid down in general terms in United States ex rel. Search v. Choctaw, O. & G. R. Co. et al., 3...