WARD et al.
Rehearing Denied September 25, 1951.
Judgment reversed and remanded for a new trial as to defendant officers and reversed as to surety on their bonds with directions to dismiss complaint against surety.
Minne & Sorenson, of Phoenix, Marshall W. Haislip, of Phoenix, of counsel, for appellants.
W. H. Chester, of Phoenix, for appellee.
De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.
De Concini, Justice.
[72 Ariz. 214] Russell Johnson, plaintiff-appellee, brought an action against Homer Ward and Thomas Moseley, defendants-appellants,
police officers of the Town of Tolleson, for false arrest and imprisonment; and also against the Hartford Accident and Indemnity Company, defendant-appellant, as surety on the bonds of the officers. The bonds were made payable to the town of Tolleson. The jury found for the plaintiff and against defendant officers, and assessed plaintiff's damages, "* * * in the sum of no dollars." The jury also found for the plaintiff and against the surety on the bonds, and assessed plaintiff's damages in the sum of $ 1,550.
The trial judge was not present when the jury returned its verdict. Another judge of the same court presided when the verdict was returned, but refused, on motion of the plaintiff, to direct the jury to further deliberate in order that they might correct their verdict. Some time later the trial judge granted plaintiff's motion for a judgment notwithstanding the verdict against the officers and adjudged them to be jointly and severally liable in the sum of $ 1,550. The court further adjudged that the plaintiff have judgment against the surety in the sum of $ 775 as to each of the officers' bonds. From that judgment defendants appeal.
Appellants' assignments of error can be grouped into two propositions; the first is that there is no liability on the bonds executed by the surety for the officers in favor of plaintiff Johnson. The record shows that the bonds executed by the surety were made payable to the town of Tolleson. Appellants assert that in order for one to sustain an action against a [72 Ariz. 215] public official for his breach of a bond which the official gives to a municipality, the one bringing the cause of action must be in privity with the surety and the bond must have been executed for his protection and security against acts committed by the official. Appellee relies largely on the case of Russell v. Glascow, 63 Ariz. 310, 162 P.2d 129, 131, in which our court said: "As shown under Sec. 16-210, supra, which section is under the chapter pertaining to cities and towns, the common council of the City of Globe could require its deputies, such as the defendant Self, to give bond for the protection of persons who might be injured, as this plaintiff was. It would be fitting for such officials to require bond of all of its peace officers." That case, however, was decided on a point completely foreign to the above quotation. In the instant case it is unnecessary for us to decide whether a city has the power to direct its officers to execute a bond in favor of third persons. We need look only to the bonds in question to see if they were made for the benefit of others besides the town of Tolleson.
Appellee contends that Sec. 12-313, A.C.A.1939, gives to the plaintiff the right to recover on the bonds. That section provides: "For use of any person damaged. -- Every official bond executed by any officer pursuant to law, is in force and obligatory upon the principal and sureties therein to and for the state of Arizona and to and for the use and benefit of all persons who may be injured or aggrieved by the wrongful act or default of such officer in his official capacity; and any person so injured or aggrieved may bring suit on such bond, in his own name, without an assignment thereof." It can thus be seen that the legislature intended to benefit the public by allowing injured or aggrieved persons to recover on official bonds. If the officers' bonds in this case had been official bonds then appellee's contention would undoubtedly be correct. However, Sec. 12-309, A.C.A.1939, provides: "Bonds, joint and several -- Condition. -- All official bonds shall be in form, joint and several, and made payable to the state of Arizona, and the condition shall be that the principal will well, truly, and faithfully perform all official duties then required, or as may be imposed on him, by law. * * *" Since the bonds in question were made payable to the town of Tolleson and not to the state of Arizona, they were obviously not official bonds; therefore, only one conclusion is tenable: The officers' bonds not being official bonds within the meaning of Sec. 12-309, supra, Sec. 12-313, supra, does not give the plaintiff the right to recover on them.
Although there are some jurisdictions not in accord, ...