Yesel v. Watson
| Decision Date | 16 August 1929 |
| Citation | 226 N.W. 624,58 N.D. 524 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ward County, Jansonius J.
Reversed and new trial granted.
Senn & Casey and Robert H. Bosard, for appellant.
"Sureties on a bond cannot be held liable in exemplary damages though the act of the principal constituting the breach of its condition was a wrongful tort." 2 Joyce, Damages, § 1566.
"The sureties like the principal are bound for the actual damages sustained by the person aggrieved by the misconduct or omission of the principal." Throop, Pub. Off. § 293.
Sureties on an official bond of an officer are not liable for the statutory penalty. Eccles v. Walker (Neb.) 106 N.W 977; State v. McCurdy (Okla.) 241 P. 816.
The measure of damages as against the sureties is, in the absence of any provisions of the statute, just compensation for actual injury. Hickson v. Cupp, 49 P. 927. See also McMullin v. Ellis, 48 S.W. 217; Lisana v. State, 109 Miss. 464, 69 So. 292; Wilson v. Orr (Ala.) 97 So. 133.
The giving of an instruction on a material point, susceptible of two constructions, one that condemns it and one that does not, where the jury may have adopted either construction, is reversible. Small v. Champeny, 102 Wis. 61, 78 N.W. 407.
Failure to instruct upon essential and controlling questions in the case constitutes reversible error. Hustad v. International Oil Co. 52 N.D. 343, 202 N.W. 814.
E. R. Sinkler, G. O. Brekke and Harold B. Nelson, for respondent.
A request to the trial court for appropriate instructions is essential in order to eradicate error on incomplete instructions. State v. Glass, 29 N.D. 620, 151 N.W. 229; State ex rel. Pepple v. Banik, 21 N.D. 417, 131 N.W. 262; Swords v. McDonnell, 31 N.D. 494, 154 N.W. 258; Zilke v. Johnson, 22 N.D. 75, 132 N.W. 640; Huber v. Zeisler, 37 N.D. 556, 164 N.W. 131.
In pleadings it is unnecessary to itemize the elements of damages, or to state separately the amounts claimed as actual and exemplary damages. Shemaker v. Sonju, 15 N.D. 518, 108 N.W. 42.
Burr, J., did not participate.
This is an action against a defendant, who was sheriff of Pierce county, and the state bonding fund, to recover damages for false arrest and for assault. The plaintiff alleges in both counts that the officer was bonded in the state bonding fund in the sum of $ 10,000 in accordance with the terms and provisions of chapter 158, Session Laws of 1919. A copy of the plaintiff's claim against the fund in the sum of $ 10,000 is attached to the complaint and incorporated therein by reference. Separate answers were interposed by the defendants and the action was tried in the district court of Ward county before a jury. A verdict was returned for $ 3,000 and interest from March 23, 1926, upon which a judgment was entered for $ 3,446.70, which included the costs. Thereafter the defendants moved separately for a new trial. The motion of the state bonding fund was granted and that of the individual defendant was denied. The instant appeal is from the judgment and from the order refusing to vacate the same and grant the individual defendant's motion for a new trial. The plaintiff likewise appealed from the separate order of the court granting the motion of the state bonding fund for a new trial, but the record contains an order for judgment and the judgment entered pursuant thereto showing an amicable adjustment of the plaintiff's claim against the bonding fund by the latter paying to him $ 1,000, the bonding fund waiving its right of subrogation to such claim against the defendant and being released from further liability, the release being "without prejudice to plaintiff's rights against the defendant George Watson."
The record shows that in instructing the jury the court, after outlining the issues, stated it was admitted that the individual defendant at the time of the injuries complained of had a liability bond in the sum of $ 10,000 with the state bonding fund and that that bond was in full force. The court charged fully upon the right of the sheriff to make an arrest, stating the circumstances in which he might arrest without a warrant. Likewise, the instruction covered fully the circumstances in which the individual defendant might be liable for an assault. Then, in instructing upon the question of damages, the court said, in substance, that if the jury should find for the plaintiff they should allow him such damages as he had actually sustained; that in estimating the damages accruing from the alleged assault it was not necessary that any specific sum should have been named or stated in the evidence; that they might consider bodily and mental pain and the shame, humiliation and loss of reputation, if any was shown, and give to the plaintiff such damages as he had actually sustained; that in addition to this when a defendant has been guilty of oppression or fraud or malice, actual or presumed, the jury, in addition to actual damages, might give damages for the sake of example and by way of punishment; that if the jury should find for the plaintiff on either or both of the causes of action they should assess his compensatory damages for such sum as would compensate him for his injuries and physical and mental suffering, if any; and, if they found the defendant to have acted oppressively or maliciously and with a purpose to vex and annoy the plaintiff, they might assess a further sum by way of punitive damages at such sum as in their judgment would be a warning. Then the court said Two forms of verdict were submitted. The form to be used in case the jury should find for the plaintiff contained a blank for the insertion of the amount of damages with no indication that there should be separate assessments of the compensatory and punitive damages; the other form to be used in case they found for the defendants.
In ruling on the motion for a new trial, the court in a memorandum opinion referred to the fact that there was a general verdict for the actual and exemplary damages and held that in the absence of a request to separate these two items it was not error as to the defendant Watson but that it was error as to the state bonding fund. It was the opinion of the court that the bonding fund could be held only for the part of the judgment that represented actual damages. It was held that the defendant Watson was not prejudiced because of the fact that the actual and punitive damages were lumped but that, inasmuch as there had been no determination as to the amount of damages for which the bonding fund was liable, it was entitled to litigate that question and a new trial was ordered in its favor.
Respondent's counsel are correct in their contention that the merits of the order granting a new trial to the bonding fund are not directly involved upon the present appeal of Watson, but it does not follow that the correctness of the order denying a new trial as to Watson is not in a measure dependent upon the character of the liability sought to be enforced and the proceedings instituted by the plaintiff. If for instance, both the bonding fund and the individual defendant were liable in this action for punitive damages and the court granted a new trial to the bonding fund on the erroneous assumption that it was not so liable, the individual defendant might not be prejudicially affected. But if, on the other hand, the bonding fund is not legally answerable for punitive damages and if the proceedings had to enforce the liability against it are such that neither defendant was called upon to meet any claim for other than compensatory damages any defendant might be prejudicially affected by instructions which authorized recovery from him of an amount more than sufficient to compensate the plaintiff for his injury. The authorities abundantly support the ruling of the trial court to the effect that one who is liable for the act of another by reason of being surety upon his official bond is not answerable for punitive damages that might be recoverable against the wrongdoer. Phillips v. Morrow, 210 Ala. 34, 97 So. 130; Constantine v. Rowland, 147 Iowa 142, 124 N.W. 189; Johnson v. Williams, 111 Ky. 289, 54 L.R.A. 220, 98 Am. St. Rep. 416, 63 S.W. 759; Growbarger v. United States Fidelity & G. Co. 126 Ky. 118, 11 L.R.A.(N.S.) 758, 128 Am. St. Rep. 274, 102 S.W. 873; North v. Johnson, 58 Minn. 242, 59 N.W. 1012; Lizana v. State, 109 Miss. 464, 69 So. 292; Hixon v. Cupp, ...
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