Moody ex rel. United States v. Megee

41 F.2d 515 | 5th Cir. | 1930

FOSTER, Circuit Judge.

The United States brought this suit to recover on the bond of Charles R. Megee, a pilot, for damages caused to the steamship Eldena through the negligence of Megee. A general demurrer was sustained and the suit dismissed.

The law of Texas provides that navigation and canal commissioners of navigation districts shall constitute pilot boards with the right to appoint, suspend, or dismiss from office branch pilots or deputy pilots of their respective ports, examine and determine upon their qualifications, and that all branch pilots» appointed shall enter into bond with one or more good and sufficient sureties in the sum of $5,000, payable to the Governor, conditioned upon the faithful performance of the duties of his office. R. C. S. 1925, arts. 8248, 8250-8253. The condition of the bond in suit conforms to the requirement of the law.

It is elementary that bonds required by statute are to be strictly construed and are not to bo extended by implication beyond tho clearly expressed intent of the statute. The District Court, relying upon the following Texas cases, to-wit: McRea v. McWilliams, 58 Tex. 328; Clough v. Worsham, 32 Tex. Civ. App. 187, 74 S. W. 350; U. S. F. & G. Co. v. Jasper, 56 Tex. Civ. App. 236, 120 S. W. 1145; U. S. F. & G. Co. v. Crittenden, 62 Tex. Civ. App. 283, 131 S. W. 232, and other eases declaratory of the general law, which it is unnecessary to cite, held that the bond did not run in favor of third persons. Undoubtedly the eases cited support this conclusion.

Appellant, however, insists that the question presented is one of general law, as the statute involved has not been construed by the Supreme Court of Texas, and relies upon the case of Howard v. United States, 184 U. S. 676, 22 S. Ct. 543, 46 L. Ed. 754. In that case suit was brought on the bond of the clerk of a circuit court to recover money deposited with the clerk and embezzled by him. It was the duty of the clerk to receive and deposit officially all sums paid to him. The bond was in favor of the United States only, but the Supreme Court held that, by clear implication arising from various statutes enacted by Congress, the bond was intended to indemnify any person dealing with the clerk in his official capacity and injured through a breach of his official duty. This ease states a general rule, but it is not in point.

All states have the right to lieense pilots for wafers within their territorial jurisdiction, and it may be safely assumed that all states do so. It is not unusual to require a bond of a pilot as a prerequisite to tbe issuance of a license, but in this ease it is difficult to conjecture what official duties are intended to be covered by tbe bond. None are imposed by tbe laws of Texas. A pilot’s license is a certificate of competence, but certainly tbe state does not assume any responsibility for bis errors of judgment or negligence. A pilot, after receiving bis license, is at liberty to pursue his vocation or not, as be sees fit. ' He is under no legal obligation to accept employment from anyone. In piloting a vessel be is not discharging any official duty. He is acting merely in a private capacity as a servant of her owner. Sherlock v. Alling, 93 U. S. 99, 23 L. Ed. 819.

There can be no liability on an official bond, unless there is a breach of official duty. It is clear that in this case tbe surety is not liable on the bond for damages occasioned by the negligence of the principal. As a judgment had been recovered against Megee, the surety is the real defendant.

The record presents no reversible error.

Affirmed.