36 S.W. 137 | Tex. App. | 1896
Opinion. — This action is by the appellant against the appellee Sinclair and others as the sureties upon his bond as Constable of Precinct No. Four, of Red River County. The action is one of damages against the defendant for the value of a horse shot by the constable, and for expenses incurred in seeking to effect a cure of the animal, and for the loss of his services. The court found the actual damages at $153.60 and for this amount rendered judgment against the constable, but refused to give any judgment against the sureties. From this result the plaintiff appeals. At the time the horse was injured he was being ridden by a prisoner charged with a misdemeanor and who was lawfully in the custody of the constable by virtue of a warrant. The prisoner attempted to escape and the constable fired upon him and wounded the horse. The constable under the facts and the law that governs in such cases had no authority to fire upon the prisoner seeking to escape, with the purpose of wounding him or killing him in order to prevent the escape, the prisoner then being held in custody under accusation of a misdemeanor. But it was the official duty of the constable, the prisoner being lawfully in his custody by warrant, to exercise proper care and diligence to retain custody of the prisoner and to prevent his escape, and when he was engaged in efforts to prevent his escape he was in the exercise of an official duty, for the abuse of which his sureties would be liable. The fact that the constable resorted to means not authorized by law in order to prevent the escape does not remove his effort to prevent the escape out of the realm of official duty. The duty to prevent the escape existed, and because the constable may have gone too far in the effort to perform this duty and while still in its exercise the injury occurred which resulted in the damages, would not relieve the act of the obligation covered by the bond. With this view of the case we reverse the judgment of the court below and here render judgment against all of the appellees for the sum found by the trial court to be the actual damages sustained by the plaintiff.
Reversed and rendered.
