United States v. Brunswick, 5876.

• Decision Date: 05 February 1934
• Docket Number: No. 5876.,5876.
• Citation: 63 App. DC 65,69 F.2d 383
• Parties: UNITED STATES, to Use of PARRAVICINO, v. BRUNSWICK et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

63 App. DC 65, 69 F.2d 383 (1934)

UNITED STATES, to Use of PARRAVICINO, v. BRUNSWICK et al.

No. 5876.

Court of Appeals of the District of Columbia.

Argued November 9, 1933.

Decided February 5, 1934.

Frank K. Nebeker and George C. Ober, Jr., both of Washington, D. C., for appellant.

B. J. Gallagher, J. H. Bilbrey, and William C. Sullivan, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.

MARTIN, Chief Justice.

An appeal from a judgment of the Supreme Court of the District of Columbia sustaining a demurrer to a declaration for want of substance and dismissing the same with costs.

The declaration alleges in substance that the plaintiff, Parravicino, in the year 1931, was a citizen of the United States and a resident of Bridgetown, Barbados, W. I.; that at the same time the defendant William W. Brunswick was the duly appointed and acting United States Consul at the city of Bridgetown aforesaid; that his official bond upon which the codefendant, National Surety Company, was surety, provided among other things that Brunswick, as consul, should at all times while remaining in office, truly and faithfully discharge the duties thereof according to law, and that in case he should violate the condition of the bond he and his surety should be liable to the United States in a penalty for the breach of such condition in a sum equal to the amount of the annual compensation of the defendant Brunswick by way of liquidated damages. That plaintiff brings the present action on the aforesaid bond in the name of the United States pursuant to section 103, tit. 22, U. S. C. (22 US CA § 103). That at the time in question plaintiff while residing in Bridgetown was engaged in the business of importing foodstuffs and dry goods and acting as wholesale commission merchant for numerous concerns in the United States; that under section 175, tit. 15, U. S. C. (15 USCA § 175), it was the duty of the Bureau of Foreign and Domestic Commerce, under the direction of the Secretary of Commerce, to foster, promote, and develop the various manufacturing industries of the United States, and markets for the same at home and abroad, by gathering, compiling, publishing, and supplying all available and useful information concerning such industries and markets, and by such other methods and means as may be prescribed by the Secretary of Commerce or provided by law and that all consular officers of the United States were required under the direction of the Secretary of State, to gather and compile, from time to time, useful and material information and statistics in respect thereto, in the countries and places to which such consular officers were accredited, and to send under the direction of the Secretary of State, reports as often as required by the Secretary of Commerce of the information and statistics thus gathered and compiled, such reports to be transmitted through the State Department to the Secretary of the Department of Commerce. That thereupon it was the duty of defendant Brunswick, as consul, to make truthful, accurate, and impartial reports to the State Department, touching all such matters as were reported by him as aforesaid; but notwithstanding such duty, the defendant on April 29, 1931, in a certain report made by him as consul to the Department of State did make false and malicious statements of and concerning the plaintiff to the effect and in substance that plaintiff was a man who bore a poor reputation and was otherwise unworthy of credit, whereas plaintiff at the time such report was made, as was well known to the defendant, was actively engaged in business as aforesaid, and was also identified with various enterprises in Bridgetown, and bore a good reputation and was otherwise worthy of credit. That the report was duly received by the Department of State and became and continued to be a record of that Department and a copy thereof was transmitted to the Department of Commerce, and that Department, relying upon the representations made in the report, in due course disseminated the false information therein among various business concerns in the United States, and as a consequence plaintiff has been greatly humiliated and injured in his reputation and business standing, and subjected to great expense, and has suffered damages in the sum of $7,000, for which he claims judgment against defendant Brunswick and defendant National Surety Company, as his surety.

Section 103, tit. 22, U. S. C. (22 USCA § 103), which is cited but not copied in the declaration, supra, as the authority permitting the plaintiff to bring the present action on defendant's bond in the name of the United States, reads as follows: "Whenever any consular officer willfully neglects or omits to perform seasonably any duty imposed upon him by law, or by any order or instruction made or given in pursuance of law, or is guilty of any willful malfeasance or abuse of power, or of any corrupt conduct in his office, he shall be liable to all persons injured by any such neglect, or omission, malfeasance, abuse, or corrupt conduct, for all damages occasioned thereby; and for all such damages, he and his sureties upon his official bond shall be responsible...