Melvin ex rel. McVey v. Evans

Ellison, J.

The relator instituted this action against defendant Evans as constable, and the other defendants as his sureties on his official bond. ■ The allegation is that, relator becoming intoxicated in the town of Lancaster, the constable (by proper authority set out) arrested him, and that in doing so he, the constable, unnecessarily beat him with stones and injured him. After the action was instituted, and before trial,the constable died. The surety defendants, in a proper way, made this suggestion to the court, and on their motion the court abated the action. Relator appeals. It is conceded by counsel that the action abated as to the constable, and the only question for our decision is, does the cause of action survive against the sureties ?

The case has been well presented by the respective counsel, and some suggestions are made by counsel for relator, perhaps difficult to answer, in illustration and support of his view that, while the action abates as to the principal, it survives as to the sureties. There are considerations, however, that seem inevitably to determine the case against him, and our holding 'is that the action abated as to the sureties also. The statutes, Revised Statutes, 1889, bearing upon the question are as follows : “ Sec. 96 : For all wrongs done to property, rights or interest of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, and, after his death, against his executor or administrator, in the same manner and with like effect, in all respects, as actions founded upon contract.

*425 “ Sec. 97. The-preceding section shall not extend to actions for slander, libel, assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator.”

“Sec. 2196. No action shall abate by the death, marriage or other disability of a party, if the cause of action survive or continue. In case of death, marriage or other disability oí a party the court, on or before the third term after the suggestion of such death, marriage or disability, may, on motion, order the, action to be continued by or against the representative or successor of such party in interest. When the cause of action does not survive, the action shall abate only as to the deceased parties, and shall continue as to the survivors, if any, without a revival thereof.”

Relator claims that the last clause of the latter section is mandatory as to all actions wherein there is a survivor. Our opinion is that this is only partly cor-' rect. The terms of the statute should be limited to the surviving wrongdoers — those who joined in the act, or to those survivors who were wronged — the injurers, or the injured, as the case might be. We are cited to Bullock v. King, 48 Ga. 550 . That case does not disclose the nature of the action. It seems not to involve the question here. On the suggestion of the sheriff’s ■death, plaintiff announced that he would proceed against the other parties (sureties) to the bond, and defendant demurred to the declaration on the ground that the •securities were not liable on the case made by the pleadings. It does not appear what the nature of the action was.

The surety’s obligation is accessory to that of the principal, and generally, if the principal is discharged, so is the surety. 1 Brandt, Suretyship, sec. 145. So I ■cannot bring myself to believe that, in a case where the cause of action is dead as to the principal, it can be alive as to the surety. It is true that a surety is bound *426 for the debt of a feme covert principal; but in such case there was never a cause of action against the married woman, and the surety’s contract is an original undertaking. So che principal may be discharged in bankruptcy and the surety held, but in such case the cause of action was not destroyed. But the cause of action for an assault and battery dies with the wrongdoer. It becomes extinguished, as if it had never been. In absence of a statute all actions arising ex delicto die with the person by whom or to whom the wrong was done. Such, for instance, as trespass, trover, assault and battery, slander, deceit, etc., where the declaration imputes a wrong to the person or the property of another, and the plea must be, not guilty. Hegerick v. Keddic, 99 N. Y. 258 . If, however, in doing the wrong, the wrongdoer acquires property beneficial to himself or to his'estate, an action survives for the value of the property. Hegerick v. Keddic, supra; Humbly v. Trott, Cowp. 371. But even under this decision there was no remedy after the death of the wrongdoer, except by force of the statute, for an injury to property not benefiting the wrongdoer.

But the thought occurs here that the sureties ought to be held in this case from contractual considerations; that is, that they have, by their bond, contracted to make good whatever damage the constable, as such, may have caused. And that since actions ex contractu survive, and the action here is on the contract as evidenced by the bond, the action ought to be held to survive. But the same argument would cause the action to survive as to the principal. Besides, it is not all matters of contract which survive, nor are all actions which do not survive named in section 97 of our statute. Eor instance, in absence of special damages, an action for breach of promise of marriage is based on contract, and yet does not survive. Stebbins v. Palmer, 1 Pick. 71 ; Lattimore v. Simmons, 13 Serg. & R. 183; Wade v. Kalbfleisch, 58 N. Y. 286 . For other instances, *427 see Hegerick v. Keddic, 99 N. Y. 258 . The contract in this case is not inconsistent with or contrary to the law of abatement or survivorship of actions. The bond only obligates the sureties to respond to a legal cause of action so long as it remains a legal cause of action ; and as before stated, if the cause of action ceases to exist against the wrongdoing principal, there is nothing to which a liability on the part of the surety can attach.

These views, while, perhaps, not established, are strengthened by this further consideration: It is a principle of law that when the surety pays the debt of the principal he may go upon the principal, or his estate, for the amount he has paid by reason of his suretyship • in other words, the estate of the principal is an indemnity for the surety. So that if we allow this action to be maintained against these sureties, they will, of course, go upon the estate' of the deceased constable for .the amount they may be compelled to pay, and in this manner the estate would be held for, or on account of, an action which did not exist against him.

We have been cited to the case of Hess v. Lowery, 23 N. E. Rep. (Ind.) 156, in which it is held that a surviving partner is liable for the unskilful surgery of the deceased surgeon, although the action did not survive as to the deceased. But this was really based upon the idea that the survivor was himself the wrongdoer through the agency of his partner. The judgment is affirmed.

All concur.