Salo v. Pacific Coast Casualty Co.

Main, J. — The purpose of this action was to recover damages for personal injuries sustained by the plaintiff, Sigrid Salo, when a jitney bus, in which she was a passenger, collided with an automobile at the intersection of 23d avenue and Union street, in the city of Seattle. In the same accident, four other persons were injured, and each brought a separate action for the recovery of damages. In each case, recovery was sought against the owner and operator of the jitney bus, and the surety upon the bond required under chapter 57, Laws of 1915, p. 227 (Rem. Code, § 5562-37 — 110 — et seq.). In each of the five cases, the surety company filed an answer, setting up, as an affirmative defense, the pendency of the other four cases, stating the amount of damages claimed in each, and alleging that the limit of liability, as against it, was the penalty mentioned in the bond. By stipulation, the five cases were tried together, but were not consolidated as one action. The evidence as to liability was the same in the several causes. The surety company requested the trial court to charge the jury that the limit of its liability was the sum of $2,500; and that the sum of the verdicts, if any, in favor of the plaintiffs must not exceed this sum as against it; and if the jury should return a verdict for two or more of the plaintiffs, and the sum of those verdicts should exceed the sum of $2,500, that then the $2,500 should be distributed between the plaintiffs in whose favor the jury found. This instruction the court declined to give, and the jury were told that, if they found in favor of any of the plaintiffs, the verdict must be against all of the defendants, including the Pacific Coast Casualty Company, the surety. In this case, the jury returned a verdict for $3,700. In the the other four cases, the verdicts were, respectively, $100, $1,500, $200, and $500. In the cases in which the verdicts were $100, $1,500, and $200, the court entered a judgment against the bonding company for the amount of each verdict. In this case, the amount of the verdict was $3,700j and judgment was entered against the bonding company for $2,500. In the case in which the verdict was $500, a new trial was granted. The defendant surety company appeals from the judgment entered against it in this case, and from the judgment in each of the other cases; With the exception of the case in which a new trial was granted, the question to be determined is the same in each case. That question is, is the surety company liable to each person injured, to the extent of $2,500, the amount of the penalty in thé bond, provided the verdict equals or exceeds — 111 — this sum, or is the surety company only liable to the extent of $2,500, even though the verdicts against the principal defendant should aggregate a greater sum? In other words, is the surety liable to each person injured, individually, to the extent of the amount of the penalty named in the bond,provided the verdict equals or exceeds this sum, or is the $2,500 penalty the extent of the liability, no matter how many persons may be injured, or the amount of the respective verdicts that they may recover? Much discussion is found in the briefs over the question whether a surety can be held liable for a greater amount than the penalty named in the bond. There is a line of cases which hold that, where the action is brought upon a covenant found in the bond, and is not brought for the penalty, which at common law would have been an action of debt, the recovery may exceed the amount of the penalty. It is unnecessary to review these cases, as they are not here applicable. In this case, the action against the surety company is not upon a covenant in the bond other than the stipulated pen-' alty. If the bond in this case does not furnish protection to each individual injured, to the extent of the penalty named, then the judgment should be reversed. On the other hand, if it was the intention of the statute, under which the bond is given, to furnish protection to each individual injured, to the extent of the penalty named in the bond, then the judgment should be affirmed. In a statutory bond, in order to determine the extent of the liability, the provisions of the act under which the bond is given are read into, and become a part of, such bond. Snohomish County v. Ruff, 15 Wash. 637, 47 Pac. 35, 441; Davis v. Virges, 39 Wash. 256, 81 Pac. 688; Kalb-Glibert Lumber Co. v. Cram, 60 Wash. 664, 111 Pac. 1050; Denny-Renton Clay & Coal Co. v. National Surety Co., 93 Wash.103, 160 Pac. 1. Over this proposition, there seems to be no controversy, but there is controversy touching the meaning of the statute. — 112 — It is necessary, therefore, to examine the provisions of the statute, and declare its meaning. The act is one relating to, and regulating common carriers of passengers upon public streets, roads and highways, and providing for the issuance of permits. Laws of 1915, page 227 (Rem. Code, § 5562-37 et seq.). Section 1 (Id., § 5562-37) of the act provides that it shall be unlawful for any person, firm or corporation, other than a steam, street or interurban railway company, to engage in or carry on the business of carrying or transporting passengers for hire in any motor propelled vehicle along any public street, road or highway, within the corporate limits of any city of the first class, “without having first obtained a permit so to do as hereinafter provided: . . .” Section 2 (Id., § 5562-38) provides that every person, firm or corporation, other than a steam, street or interurban railway company, desiring to engage in the business of carrying or transporting passengers for hire in any motor propelled vehicle over or along any public street, road or highway in any city of the first class, and every street or interurban railway or other transportation company desiring to engage in the business of transporting passengers for hire in any motor propelled vehicle except street cars, “shall apply to the secretary of state for a permit so to do, and such applicant for each motor vehicle intended to be so operated shall deposit and keep on file with the secretary of state a bond running to the state of Washington in the penal sum of twenty-five hundred dollars . . . conditioned for the faithful compliance by the principal of said bond with the provisions of this act and to pay all damages which may be sustained by any person injured by reason of any careless, negligent or unlawful act on the part of said principal, his agents or employees in the conduct of said business or in the operation of any motor propelled vehicle used in transporting passengers for hire ...” This section further requires that there shall be paid to the secretary of state a fee of five dollars, and thereupon a license shall be issued to the applicant. — 113 — Section 3 provides that: “Every person injured by any careless, negligent or unlawful act of any person, firm or corporation receiving a permit under the provisions of this act, . . . shall have a cause of action against the principal and surety upon the bond provided for in the preceding section for all damages sustained and in any such action the full amount of damages sustained may be recovered against the principal, but the recovery against the surety shall be limited to the amount of the bond . . .” Id., § 5562-39. The controversy here is over the meaning of the excerpt quoted from § 3. It is a familiar canon of construction that, in determining the meaning of a word, clause, or sentence appearing in a statute, all the provisions of the act, so far as they may throw any light upon the construction of the particular word, clause, or sentence involved, shall be considered. In this statute, we find nothing in the preceding or the subsequent sections which would tend to show a legislative intent to give a meaning to the sentence quoted from § 3 other than the language there used would indicate. If the clause, “but the recovery against the surety shall be limited to the amount of the bond,” were removed from its setting, and considered as standing alone, it may be that its proper construction would be to limit the liability upon the bond to the amount of $2,500, no matter how many persons may have been injured, or the aggregate amount of the verdicts which they had obtained. But it should be noted that this clause is the concluding part of a sentence which gives to “every person injured” a cause of action against “the principal and surety upon the bond.” The use of the word “every” means individually, each, or one by one. The word “every” is used in the statute as an adjective, and in this sense it is defined in Webster’s International Dictionary as meaning: “All the parts which compose a whole collection or aggregate number, considered in their individuality; all, taken separately one by one, out of an indefinite number.” — 114 — The definition given in the Century Dictionary and Cyclopedia is: “Each, considered indefinitely as a unitary part of an aggregate; all, of a collective or aggregate number, taken one by one; any, as representing all of whom or of which the same thing is predicated.” The language of the statute to be construed, eliminating qualifications which are not here material, and stated in compact form, would read: “Every person shall have a cause of action against the principal and the surety upon the bond, and, in any such action, the full amount of damages sustained may be recovered against the principal, but the recovery against the surety shall be limited to the amount of the bond.” By the language of the statute, read in the light of the accepted definitions of the word “every,” a right of action is given to each and every person, one by one, against the principal and the surety upon the bond, and, in any “such action,” the recovery against the surety shall be limited to the amount of the bond. “Such action” refers to the action previously described, that is, one which each or every person shall have, and the clause which limits the recovery against the surety to the amount of the bond is referable to the action described in the sentence which precedes this clause. The effect of the language of the statute is to make the bond separate as to each or every individual injured. The statute does not use the words all persons shall have a right of action against the surety and the bond, but the recovery against the surety shall be limited to the amount of the bond. If it did so read, the contention of the appellant would, doubtless, be sustained by the language of the act. Section 2 of the act requires that a surety bond shall be kept on file in the office of the secretary of state. There is no provision in the act requiring the filing of an additional bond when the security may be impaired. If the bond is exhausted by the first judgment against it, to the extent of — 115 — $2,500, then it would be possible for the owner of a motor-propelled vehicle to carry passengers for hire with a bond on file in the office of the secretary of state upon which there could be no liability because the penalty had already been exhausted by the previous judgment. Such a result was certainly not intended by the legislature. If the concluding clause in the sentence quoted from § 3, which is, that the recovery against the surety shall be limited to the amount of the bond, means that the penalty of the bond is exhausted by the first judgment of $2,500 against it, then what becomes of the previous part of the sentence, which gives to every person a right of action against the principal and against “the surety”? To sustain this construction, it would be necessary to make the statute read that every person shall have a right of action against the principal and the surety upon the bond, but that there shall be no right of action against the surety when there is a previous judgment against the bond to the extent of $2,500. In other words, it would impose a qualification upon the language of the statute which gives a right of action against the principal and the surety upon the bond, not found in the act. The language of the statute gives to each and every person injured, through negligence in the operation of a motor propelled vehicle, a right of action against the bond to the extent of $2,500. The judgment will be affirmed. Ellis, C. J., Holcomb, Parker, and Webster, JJ., concur.