49 Colo. 516 | Colo. | 1911
delivered the opinion of the court:
Action upon the official bond of a sheriff, to recover of him and the surety on his official bond, damages for alleged nonfeasance of his deputy. The bond was conditioned that the sheriff “shall faithfully perform and execute the duties of the office of sheriff.” To the. judgment dismissing the action, following a ruling sustaining a demurrer to the complaint, plaintiff has sued out this writ of error. The complaint in substance alleges that Wedow, the deputy sheriff, while acting as such, and in the performance of the duties of his office, had under arrést and in custody a certain prisoner whom he was conveying to the county jail for temporary detention or safe keeping, as the law provides. They were riding in a street car from Englewood in Arapahoe county to the city of Denver, and while plaintiff, who was a passenger, was sitting in his seat in the same car near to them and free from fault, the deputy,
An indemnity, or security, contract, like written instruments generally, is to have a reasonable interpretation, or construction, but when its meaning has once been judicially determined, it is strictissimi juris. It is not to be extended by construction to bring within its scope things other than those therein expressed, merely because the judicial mind may think that they, equally with those included, ought to have been provided for. Bearing in mind, then, this rule of construction, let us analyze this complaint to see if the surety’s contract indemnifies plaintiff against the acts charged against the deputy. Of course the sheriff is bound equally with his deputy, if the acts of negligence charged against the latter can properly be said to be an official duty pertaining to the office.
As we understand from the briefs, the theory of the plaintiff is that the deputy sheriff was acting by virtue, and under color, of his office in taking the revolver from the person of the prisoner, and con
It is not every act which a sheriff or his deputy does while, or during the time that, he is engaged in the performance of an official duty for which the sureties on his bond are liable. The true distinction is, we think, that liability does not attach unless the act complained of is an official act, constituting a part, and directly connected with the doing, of an official act. If, for example, the sheriff steps aside from his official duty and negligently does, or omits to do, an act in no wise connected with the discharge of such duty, though done or omitted during the time of its performance, by which another is injured, the sureties certainly could not be held liable in damages therefor. This distinction is well illustrated in the case of People v. Pacific Surety Company, 109 Pac. Rep. 961, and cases therein cited. To bring this case within the rule, upon plaintiff’s own theory, he must, inter alia; by apt words, allege in his complaint that, in making the arrest of the prisoner it was the duty of the deputy and a part of his official act, and directly connected therewith, as one continuous transaction, to take from him the loaded revolver found upon his person, and safely to keep the weapon until he delivered it and the prisoner to the keeper of the jail; and that while conveying the prisoner from the place of arrest to' the jail, the deputy sheriff; in keeping the loaded revolver on his person, was engaged in the performance of an official aet, in negligently dropping the weapon and causing the injury to plaintiff, before the sheriff and his official bondsmen can be held liable. This court has held, in the case of Newman v. People, 23 Colo. 300, that, at
There is no allegation in the complaint showing that the deputy ever arrested the prisoner, or one which sets out the charge, if any, on which the prisoner was arrested; or that he had committed any crime with the revolver, or otherwise; or that the weapon was loaded when in his possession; or that it was necessary for the officer to' take the same from him as furnishing any evidence of his guilt of an offense, if any, with which he was charged; or that the taking of the weapon was a necessary or reasonable precaution for the officer in the discharge of some supposed official duty. The case is not brought either within the common-law or statutory requirements. It is not enough, in an action of this kind, for the pleader generally to state that the officer is acting “by virtue of, or under color of, his office,” or that the acts are. of such á character a,s are authorized by law, or that the same constitute his official duty. These are merely conclusions of the pleader, and not statements of fact at all. — People v. Cobb, 10 Col. App. 478. It is not enough merely to allege that the
We must not be understood as holding that for an unlawful act, or one in excess of his legitimate
It is necessary here merely to say that the complaint is not sufficient, in that it signally fails to show, by proper averment of facts, although conclusions of law may be pleaded, that the acts charged against the deputy sheriff were done by virtue of or under color •of his office. The judgment of the district court being in accordance with this view, it is affirmed.
Affirmed.
Mr. Justice Gabbert and Mr. Justice Hill concur. _