Bynum v. Western Surety Co. of Sioux Falls, S.D.

HALLEY, Justice. Margaret D. Bynum filed this action in the District Court of Jackson County against the three County Commissioners of that County, W. A. Chapman, Roger J. Brown and J. N. Netherton and Western Surety Company and The Hartford Accident & Indemity Company, corporations, to recover damages for the wrongful death of her son. The corporations named were the sureties upon the bonds of the County Commissioners named. We shall refer to the parties as plaintiff and defendants as they appeared in the trial court. The defendants demurred to the amended petition of the plaintiff and on June 7, 1955, the court overruled the demurrer as to the three individual defendants named as County Commissioners, but sustained the demurrer as to the two surety companies named. Upon the failure of the plaintiff [974] to plead further the action was dismissed as to the surety companies. The plaintiff :gave 'notice of appeal and has elected to - appeal upon the record. Plaintiff alleged that the individual defendants as County Commissioners were ■negligent in failing to inspect, repair and warn of the dangerous condition of a bridge on;-a county highway in Jackson County; that she was the mother of a son who lived with her and contributed to her support; that the Commissioners named were charged by the laws of Oklahoma with the responsibility . of maintaining , public county bridges in their county that were over 20 feet in length, which included a bridge over “Salt Fork of Red River,” erected on a county road about two miles southeast of Olustee in Ja'tkson County; that about two years prior to the accident ' whereby her son was injured, a 'flood had torn out a 'span of this bridge, and that defendants had never replaced the destroyed span or repaired the bridge which was long and had curves which were not noticeable until after entering upon the bridge and traveling thereon for some distance ; that the damaged bridge was very dangerous to any one attempting ■ to use or cross it; that defendant Commissioners had notice of the dangerous condition of the bridge and had available sufficient funds for repair, but made no effort to repair it and negligently permitted it to remain in its dangerous condition for almost two years, erecting no barricades or warning signs of its dangerous condition. Plaintiff further alleged that her son, Robert F. Bynum, did not know of the condition of the bridge when he attempted to cross it on December 7, 1952, by driving his automobile upon and over the bridge with no warning of its dangerous and damaged condition, and in attempting to drive across it his car fell through and off the bridge, resulting in injuries'from which he died. The record discloses-that the bonds of the Commissioners are in the sum qf $2,500 each and each bond was- approved by the county judge and also bears the approval of the three Commissioners when filed with the county judge. Defendants contend in their brief that .the bonds do not appear to disclose that the amount of the bonds was fixed by the county judge, as required by 19 O.S.Í951, Section 323. We think the approval of the bonds in the sum of $2,500 each is sufficient to warrant the presumption ■ that the. judge fixed the amount of the bonds. The plaintiff contends that the court erred in sustaining the demurrer of Western Surety Company and The Hartford Accident & Indemnity Company, sureties on the Commissioners’ bonds to the amended petition of the plaintiff. The second proposition of plaintiff is that the court erred in dismissing her case as to the sureties after their demurrer had been sustained and plaintiff had declified to plead further. We think that'in view of the record before us these two- propositions, may be considered together.. If the trial court was justified in sustaining-the demurrer as to the sureties on the bonds of-the Commissioners, then it was not error to dismiss the action as to the sureties when. the plaintiff de- . dined to plead further. The principal" issue involved here is a correct interpretation of Section 323, 19 O.S.1951, which-provides as follows: “Every county commissioner before entering upon the duties of his office shall execute a bond in the penal sum of not less tlian one or more than five thousánd dollars, the amount and sufficiency of such bond to be determined by the county judge, and said 'bond shall be filed and kept in the office- of said judge.” ■ Plaintiff cites Section 76, 12 O.S.1951, which .is as follows: “When an officer, executor or administrator within this State, by misconduct or neglect of duty, forfeits his bond or renders his sureties liable, any person injured .thereby, or who is, by law, entitled to the benefit of the se [975] curity, may bring an action thereon his own name, against the officer, executor or administrator and his sureties, to recover the amount to which he may be entitled by reason of the delinquency. The action may be instituted and proceeded in on a certified copy of the bond, which copy shall be furnished by the person holding the original thereof.” in In support of the Section just quoted plaintiff cites Smith Engineering Works v. Custer, 194 Okl. 318, 151 P.2d 404 and Standard Surety & Casualty Co. of New York v. Kelley, 197 Okl. 292, 170 P.2d 251, 253. Both of these cases are based upon alleged violation by a county commissioner incurring indebtedness in behalf of his county, “ * * * in excess of estimate made and approved by the excise board for such purpose for such current fiscal year. * * *” Section 479, 62 O.S.1951, plainly says that when a commissioner violates that provision, such indebtedness so unlawfully incurred “ * * * may be collected by civil action from any official contracting * * * or from his bondsmen.” In each of these cases an express statutory authority existed as a basis for holding the sureties on the bonds liable. It will be noted that Section 323, 19 O.S. 1951, quoted above makes no provision that sureties on the bonds of county commissioners there required may be made to respond for negligence of the county commissioners or for any unlawful act causing personal injury or death to another. No decision is cited showing such right of recovery. Plaintiff also cites Ingles v. Hotze, 191 Okl. 378, 130 P.2d 302, where the surety was sued on the statutory bond of a sheriff. The conditions for the bond required of a sheriff are prescribed by Section 512, 19 O.S.1951, and one of the conditions is the “faithful performance” of his duties. No such condition is found in the statute which requires a bond by a county commissioner. It is not disputed that contracts of sureties are strictissimi juris and that sureties are not bound beyond the strictest terms of their commitment and that their liability cannot be extended beyond the terms of their contract. The statutory requirements for the bonds of other county officers than county commissioners all provide that their bonds require the officer to faithfully discharge the duties of his office as required by law, but such provisions do not appear in the above quoted Section 323, requiring county commissioners to give a bond. See the case of Lowe v. City of Guthrie, 4 Okl. 287, 44 P. 198, 200, in which it is said: “ * * * In the absence of anything appearing to show a different intention in the giving of a statutory bond of a public officer, it will be presumed that the intention of the parties was to execute such a bond as the law required; and, although its terms may bear a broader construction, the liability of the sureties will be confined to the measure of liability as contemplated by the law requiring such bond. A bond which contains the conditions required by statute, and also conditions in excess of those specified by statute, is valid, so far as it imposes obligations authorized by the statute; but the stipulations which are in excess of it may be rejected as surplusage. * * ” The Board of County Commissioners is the executive branch of the county, authorized to act in behalf of the county in its financial and contractual affairs. No other county officers may bind the county or make it liable to third parties. In view of these facts it is reasonable to conclude that the bond required of the commissioners is for the purpose of protecting the county against losses that might occur from the wrongful acts of the commissioners vested with such important powers with respect to the financial welfare of the county. The action of the trial judge in sustaining the demurrer as to the sureties on the Commissioners’ bonds is hereby affirmed. [976] WELCH, C. J., CORN, V. C. J., and DAVISON, JOHNSON and CARLILE, JJ., concur. WILLIAMS, BLACKBIRD and JACKSON, JJ., dissent.