Tuttle v. Short

• Decision Date: 27 May 1930
• Docket Number: 1601
• Citation: 288 P. 524,42 Wyo. 1
• Parties: TUTTLE v. SHORT [*]
• Court: Wyoming Supreme Court

288 P. 524

42 Wyo. 1

TUTTLE v. SHORT ^[*]

No. 1601

Supreme Court of Wyoming

May 27, 1930

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

Action by F. F. Tuttle as administrator of the estate of Calvin P Stephens, deceased, against Geo. B. Short, as administrator of the estate of Frank B. McFarlane, deceased, and Massachusetts Bonding & Insurance Company as surety on the official bond of Frank B. McFarlane, Sheriff, deceased. There was judgment for plaintiff and defendants appeal. The material facts are stated in the opinion.

Reversed and Remanded.

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

The petition does not state a cause of action against appellants either jointly or severally, in that it does not meet requirements of Sec. 5581 C. S. It does not appear from its allegations that the acts complained of were committed under color of office and no breach of the sheriff's bond is alleged. The action is not brought by the obligee named in the bond which is the State of Wyoming. Aucker v. Adams & Ford, 23 O. S. R. 543, 32 Cyc. 123, 9 C. J. 85. Sec. 5581 is remedial. Rothwell v. Knight, 37 Wyo. 11, 1 C. J. 100. At common law, personal representatives could not recover in tort for a decedent's estate. 17 C. J. 1181. Secs. 5560 and 5561 C. S. have not changed the rule. Death by wrongful act, not being a wrong against decedent, an official bond is not breached as to such decedent by death, nor as against his personal representative as distinguished from a representative of decedent's family under the Wyoming statute, hence an action will not lie for the estate under 5581 C. S. There is no allegation that decedent was so injured that while alive he would have been entitled to recover. But this action is not for injuries. Liability exists for wrongful acts under colore officii, and virtute officii. But facts must be alleged bringing the case within the rule. Lynch v. Burgess, (Wyo.) 273 P. 691; 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, (Kan.) 174 S.W. 795; Felonicher v. Stingley, (Calif.) 76 P. 504; People v. Surety Co., (Colo.) 109 P. 961; Burge v. Scarborough, (Ala.) 100 So. 653. At common law no one had a right of action for death resulting from negligence. 1 C. J. 195, 17 C. J. 1181. Burdick's Torts, 4th Ed., 1926. The rule has been modified by 5560 and 5561 C. S. as to death actions. The petition does not charge the sheriff with a violation of duty under the common law rule or the statutes. A prior judgment for breach of duty exhausts the penalty of the bond, and respondent had no right to bring this action. Bothwell v. Sheffield, 8 Ga. 569. 35 Cyc. 1912. Sec. 5581 C. S. is merely a procedural statute, and leaves unchanged the substantive law that the penalty of the bond limits the obligation of the surety. 32 Cyc. 121, 1459 C. S. The judgment is not sustained by evidence. The driver was an undersheriff, and not a deputy sheriff, 1465 C. S., Chap. 110, Laws 1925. Duties prescribed for an undersheriff do not reach a deputy sheriff. Meacham's Pub. Officers, 511, 522. Black on Interpretation of Laws, 318. No powers will be employed other than those necessary for the discharge of the duties imposed by the statute. 46 C. J. 287. In re Farrell, 36 Mont. 254; Throop, Sec. 566; State v. Des Chutes Land Co., (Ore.) 129 P. 764, 36 Cyc. 865. Duties of undersheriffs are fixed by 1465 C. S. and of deputy sheriffs by Secs. 1473, 1474. An undersheriff is advanced when a vacancy occurs in the office. He is not a subordinate officer of the sheriff. 1465 C. S., Ch. 110, Laws 1925; Wilson v. Russell, (Dak.) 31 N.W. 645, 35 Cyc. 1521; Ivy v. Osborn, (Tenn.) 279 S.W. 384. An officer is not liable for unofficial acts of his deputy. Fidelity Co. v. Smith, (Ga.) 134 S.E. 801, 1388 C. S. Duties of deputy sheriffs are fixed by 1473 C. S., 1 A. L. R. 236. Foley v. Martin, (Calif.) 71 P. 165. Goodfellow was not acting virtute officii or colore officiia at any time during the day of the accident. Respondent filed no claim against the estate of the deceased sheriff on the official bond as required by law. 6887 C. S. The case at bar is one upon contract. 6892 C. S., is identical with statutes on the same subject in Montana and California. It does not appear from the face of the claim that it was presented to the administrator. Presentation is necessary before suit. Vanderpool v. Vanderpool, (Mont.) 138 P. 772; Burnett v. Neraal, (Mont.) 214 P. 955; Fratt v. Hunt, (Calif.) 41 P. 12; Morse v. Steele, 86 P. 693; Bank v. McCown, (Calif.) 150 P. 985; Delfelder v. Bank, 38 Wyo. 481. The Wyoming statutes are identical with the Ohio statutes, construed in Aucker v. Adams, supra. Promises in a bond are presumed to be joint, not several, unless the contrary is 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. Sec. 5581 C. S. provides for a joint action, and the instrument sued upon purporting to create a several liability, must be treated as surplusage. U. S. F. & G. Co. v. Iowa Tel. Co., (Ia.) 156 N.W. 727; U. S. v. Birley, 10 Pet. 343, 9 L.Ed. 341; State of Ohio v. Findley, 10 O. 58; American Surety Co. of N. Y. v. Sch. Dist., (Nebr.) 219 N.W. 583, 589; Duke, et al. v. Natl. Surety Co., (Wash.) 227 P. 2 and 3; Schisel v. Marvill, (Ia.) 197 N.W. 662; Sauer v. Fidelity & Deposit Co. of Md., (Ken.) 234 S.W. 434, 436; American Surety Co. of N. Y. v. Tarbutton, (Tex.) 248 S.W. 435, 437; State v. Read, et al., (La.) 113 So. 860; Trustees v. Chambers, et al., 240 Ill.App. 295 and 301. A several judgment should not be entered in a joint action. Hartney v. Gosling, 10 Wyo. 346, 33 C. J. 1115. The petition alleges an action in tort, hence appellant administrator is not liable as there is a fatal variance, and the surety company is not liable in any event. The action is not pleaded on the bond and it must be judged by its language. Van Oss v. Synon, 85 Wis. 661, 1 Enc. P. & P. 147. The penalty of the bond is $ 4,000.00, whereas the sheriff's liability in tort for death was not limited at all. 5561 C. S. A claim of $ 10,300.00 with interest is consistent with an action in tort, but inconsistent with the penalty stipulated in the bond. If negligence is charged as the joint or concurrent negligence of two defendants, it must be proved, and proof of the negligence of one only, is fatal to recovery. 45 C. J. 1129; Sturzebecker v. Co., (Pa.) 60 A. 583; Forsell v. Co., (Mont.) 100 P. 218; Ellis v. Crowl, (Kas.) 26 P. 454. The testimony of Vaughn Stephens was incompetent under Sec. 5807 C. S. Hubbell v. Hubbell, 22 O. S. R. 208; Edwards v. Edwards, 24 O. S. R. 402; Bamforth v. Ihmsen, 28 Wyo. 282. Judgment should be directed in favor of appellants.

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

The only method by which a suit of this nature can be brought is by the personal representative. Thorp v. U. P. Coal Co (Utah) 68 P. 145; Utah Co. v. Coal Co., (Utah) 83 P. 524; In re Lohman's Estate, (Utah) 85 P. 445. The sheriff and his assistants had arrested Calvin P. Stephens and taken him into custody under a warrant. They were acting under color of office. This action is one of contract. That is on the bond, for breach of duty on the part of the principal. A pending suit or judgment rendered against a surety covering the entire penalty of a bond, is not a defense against another action, unless the judgment has been paid. 32 Cyc. 121. The judgment set up in the answer was reversed by this court in civil case No. 1585, Supreme Court docket. Aucker v. Adams & Ford, 23 O. S. R. 543, and cases cited by appellant taken as a whole sustains respondent's position. Aside from the antequated decision from Ohio, rendered about 70 years ago, modern authorities hold that bonds of the class involved here, are joint and several. 46 C. J. 1029; Hunt v. Gordon, 250 So. 620; Hoppe v. Johnson, 14 P. 833; Dishneau v. Newton, 64 N.W. 879. It was unnecessary to present a claim to the administrator of the deceased sheriff before commencing suit. The surety company committed no tort; this action is upon contract, the tort being only an incident necessary to show breach of the contract. Official bond obligations are liberally construed. Taylor v. Parker, 43 Wis. 78; Hunt v. Gaylor, 25 O. St. 620; Secs. 1459, 5581 and 5596, relate to the joint and several character of bonds, and would seem to require construction here, as to whether the personal representative of the sheriff is a necessary defendant, and the instrument itself joint and several in character. The sheriff is estopped from denying facts recited in the bond. Herman v. Dayton Bank, 10 Oh. St. 445, 446; 32 Cyc. 69; 21 R. C. L. 47. There is nothing in the law to prevent an undersheriff from performing the duties of a deputy or assistant sheriff. 1388, 1389, 1390, 1465, 1587 C. S. A sheriff is liable for the safety of prisoners in his custody. Indiana v. Gobin, 94 F. 48; Kusah v. McCorkle, L. R. A. 1918C. 1158. Failure to file a claim with the administrator is not a defense available to a surety on a sheriff's bond. Bell v. Walker, 74 N.W. 617. This action is upon the bond of the sheriff, and his surety for failure to exercise reasonable and ordinary care for the protection of a prisoner. The sheriff's bondsmen are liable for negligence of the sheriff's deputies and assistants, whether called undersheriffs or deputies. The acts of negligence occurred in the presence of the sheriff, and consisted in making a turn at a dangerous place in the road instead of going 200 yards farther, where it could have been made...