177 Mo. App. 717 | Mo. Ct. App. | 1913
This is an action on the official bond of a donstable for wrongful death of á child of relators. It comes before our court upon the record proper which discloses these facts:
Appellant May was the duly elected constable of the justice’s court within and for the fifth district of St. Louis. He gave bond in the statutory form in the sum of $5000, conditioned that May “will execute all process to him directed and delivered, and pay over all money received by him by virtue of his office, and in every respect discharge all the duties of constable according to law.” Appellants Henry and Stocker signed and executed this bond as sureties.
Upon receiving the writ and summons, May, acting as constable, turned it over to his deputy with directions to execute it. The deputy proceeded to the home of the Hamiltons, where the property mentioned was located, and executed the process. But just before actually removing the property therefrom, in the language of .the petition, “and as a means to, and in furtherance of, the execution and service of said writ and summons,” the deputy, with gross negligence and in total disregard of his duty,, opened an outer door of the building where the property was located and let it remain open for a half hour before actually removing the property called for in the writ; and it is charged that by reason of so leaving the door open, James Elmer Hamilton, an eight-months-old infant son of the relators, then in the building, contracted pneumonia, from which he thereafter died.
Appellants Henry and Stocker took no part in and had nothing whatever to do with any act causing or contributing to the death of the child in question; nor had May, personally, the writ and summons having been executed by his deputy.
It is charged in the amended petition that relators were compelled to expend the sum of $100 for medicines and doctor’s bills, and likewise the sum of $100 for funeral and burial expenses as the result of the exposure of their son as above. Relators further claim they suffered a loss of services of the child in the
In the trial court, which was to a jury, a verdict went in favor of the State of Missouri against all defendants for the penalty of the bond, that is, $5000', and actual damages assessed at $300', in favor of relators, judgment following accordingly. No punitive damages were awarded, the jury refusing to assess any. From the judgment all defendants prosecute this appeal.
Standing upon the record proper, it is argued by counsel that the statutory action for damages for death caused by wrongful act does- not lie against the principal and sureties on a constable’s bond; that the Death Damage Act (sections 5425, 5426, Revised Statutes 1909) does not create any new cause of action but transmits the right to sue which the deceased would have had had he lived and that if the deceased would have had no deam nothing is transmitted. Both these propositions, it is claimed, find support in the decisions of our Supreme Court in Strode v. St. Louis Transit Co., 197 Mo. 616, 95 S. W. 851, and Buel and Wife v. United Rys. Co., 248 Mo. 126, 154 S. W. 71.
It is further argued that the right of action thus transmitted is only in tort and not in contract. This proposition, it is claimed, is sustained by the decisions of our Supreme Court in Hennessy v. Bavarian Brewing Co., 145 Mo. 104, l. c. 113, 46 S. W. 966, and Glenn v. Hill, 210 Mo. 291, 109 S. W. 27.
We do not consider it necessary to take up either of these questions. The questions here to be determined is whether the act complained of is within the conditions of this bond. If not, it is unimportant to determine whether the cause of action pleaded survives so as to be enforced against the sureties.
We find no ease and are referred to none which goes to the extent of holding the officer and his sureties liable on the bond for such an act. Cases nearest
In Commonwealth v. Sommers, 66 Ky. (3 Bush) 555, it is held that a bond of a constable, conditioned substantially as here, binds his surety only for the faithful performance of such official duties as the constable was required or permitted by law to discharge. In line with this, see People ex rel. v. Lucas et al., 93 N. Y. 585.
An instructive case is that of The State of Maryland, to the use of Cocking et al. v. Wade et al., 87 Md. 529. That was an action against the sheriff and his sureties on his bond to recover damages for his. alleged negligence in the performance of his duty, whereby the father of the relators lost his life, the father at the time in jail and in the custody of the sheriff and taken out and killed by a mob. Said the court (l. c. 541), referring to the performance of duty by the sheriff: “If he does this honestly, with a full purpose to perform his whole duty, even though he makes, a mistake, whereby a prisoner is injured, it would be monstrous to hold him civilly responsible for damages to such prisoners,” citing Kendall v. Stokes, 3 How. (U. S.) 87, at page 98. Still further on and in the same case, it is said (l. c. 544): “The liability of the sureties is that of an express contract, that the sheriff shall ‘well and truly execute the office of sheriff and in all things thereto appertaining, and should well and truly perform all the duties required by law to be by him performed.’ This provision, it seems now to' be well settled, ‘binds the officer affirmatively to the faithful execution of his office. There is no clause to cover an abuse or usurpation of power—no negative words that he will commit no wrong by color of his office, nor do anything not authorized by law.’ ” [See also State; use of Vanderworker v. Brown, 54 Md. 318, l. c. 326, and cases there cited; also Kendall v. Stokes, supra.]
The judgment of the circuit court is reversed.