Brown v. Cochran

Richards, J. Plaintiff’s petition alleges that on March 22, 1935, defendant Cochran was chief of the fire department of the city of Council Bluffs; that by reason of chapter 80, Code 1931 (section 1619 et seq.), defendant’s duties as such fire chief were to attend, and to have charge of the fire department, at all fires in said city, and at such fires to exercise the powers of chief of police, and to investigate the causes, origins and circumstances of all such fires, and whether such fires were the result of carelessness or design; that on the date mentioned a fire occurred in plaintiff’s home in said city during the absence of plaintiff and his family; that defendant Cochran in his capacity as fire chief attended said fire and was present at plaintiff’s home when plaintiff arrived at about the time the fire was extinguished; that upon plaintiff’s such arrival, Cochran in the presence of two police officers and about thirty of plaintiff’s neighbors accused plaintiff of having set said fire, charging that plaintiff had “done this job and he knew it”, thereby accusing plaintiff of the crime of arson; that thereafter Cochran made the same statements to other persons, as set out in the petition; that said statements and accusations were false and untrue, without reasonable or probable cause on part of defendant Cochran, and ivere made wantonly and maliciously, with the intent and purpose on part of Cochran to injure and defame plaintiff’s reputation and social and business standing; that plaintiff has been damaged in the sum of $10,000 for which he asks judgment. Defendant Cochran filed a separate demurrer to the above outlined cause of action against him. The demurrer rests on the proposition that plaintiff cannot recover because at the time of *36 the matters of which complaint is made, Cochran, in his capacity as fire chief, was acting in a governmental capacity. Upon authority of Mayo v. Sample, 18 Iowa 306, opinion by Mr. Justice Dillon, the error in defendant Cochran’s contention is this, whatever privileged character his communications may have had, the same was conditional or qualified, not absolute. The alleged privilege not being absolute, the demurrer, upon the grounds therein contained, failed to point out wherein plaintiff’s petition did not state a cause of action against Cochran. ’As against defendant New Amsterdam Casualty Company, the petition, in addition to its contents already stated, sets out the official bond given to the city of Council Bluffs by defendant Cochran as fire chief, which the casualty company executed as surety. This bond conforms to section 1059, Code 1931, being the section which prescribes the conditions to be contained in bonds of public officers. In substance the bond was conditioned that Cochran as fire chief in said city will render a true account of his office, will promptly pay over to the proper person all money that may come into his hands, will exercise all reasonable diligence and care in the preservation and lawful disposal of all money and other property appertaining to said office and deliver them to his successor, or to any other person authorized to receive the same, ‘ ‘ and * * *will faithfully and impartially, without fear, favor, fraud, or oppression, discharge all duties now or hereafter required of his office by law.” To the cause of action as above stated, against the casualty company, it filed a separate demurrer containing grounds identical with those of Cochran’s demurrer already disposed of, and additionally the surety company demurred on the ground that the bond was a fiduciary bond, requiring the surety to account only for money and property. This contention of the surety company is based upon its construction of the code section following above mentioned section 1059, that is, code section 1060, which reads: “1060. Liability of surety. The sureties on such bond shall be liable for all money or public property that may come into the hands of such officer at any time during his possession of such office.” *37 In support of its contention the surety company in argument says: “It is stated under section 1060, that such surety is only liable for the money or property that comes in his (the officer’s) hands as officer during his possession of the office.” We are unable to agree. As originally enacted what is now section 1059 and section 1060 was incorporated in a single section of the legislative act. The latter part of such section as enacted then read, in the Code of 1897, as. follows: ‘' and that he will faithfully and impartially, without fear, favor, fraud or oppression, discharge all duties now or hereafter required of his office by law; and the sureties upon such bond shall be liable for all money or public property that may come into the hands of such officer at any time during his possession of such office.” The separation of the contents of the present Code section 1060 was made by the extra session of the 40th General Assembly, known as the code revision session.«If the contents of section 1060 be read as enacted, the provision, that the sureties shall be liable for all money or public property that may come into the hands of such officer at any time during his possession of such office, indicates a legislative intent to make certain the full extent of the liability of the surety with respect to money and property, at any time coming into the officer’s hands, rather than to limit the surety’s liability in other respects. One of the required conditions of the bond is that the principal “will faithfully and impartially, * # * discharge all duties now or hereafter required of his office by law.” The statute plainly demands that this condition, as well as an accounting for property and money, must be secured by a bond signed by approved sureties. Appellee’s contention if logically followed out amounts to saying that a bond not containing the condition that the principal will faithfully * * * discharge all duties now or hereafter required of his office by law, would be a sufficient statutory official bond. It is self-evident that this statute cannot be so construed. We conclude that the grounds of the demurrer of the surety company failed to point out any fatal defects in plaintiff’s petition. It will be noted that the ground of demurrer of the casualty company was the general proposition that its liability was to account only for money and property. The question whether the matters alleged in the petition established prima facie that the principal on the bond did not “faithfully and impartially, *38 without fear, favor, fraud or oppression, discharge all other duties now or hereafter required of his office by law,” is not raised by the demurrer, was not argued and is not by us determined. ' The case is reversed. — -Reversed. Parsons, C. J., and Stiger, Hamilton, and Donegan, JJ., concur. Mitchell and Anderson, JJ., dissent.