From a judgment for plaintiff and an order denying new trial, defendants appeal. Judgment and order affirmed. and that the consideration for the notes might possibly fail defeat its claim to be a holder in due course? Our Codes provide: who has taken the instrument under the follow"Sec. 5900. A holder in due course is a holder Geo. W. Farr and H. E. Herrick, both of Miles City, for appellants. P. C. Cornishing conditions: 1. That it is complete and regand Booth & Dousman, all of Baker, for respondent. ular upon its face; 2. That he became the holder of it before it was overdue, and without notice that it has been previously dishonored, if such was the fact; 3. That he took it in good faith and for value; 4. That at the time it was negotiated to him, he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it." HOLLOWAY, J. On April 17, 1913, J. M. Grant, J. J. Johnston, and R. V. Fuqua executed and delivered to Charles E. Clark ten promissory notes, each for the sum of $200. Before the maturity of any of the It has often been said that a negotiable notes they were all indorsed and transferred promissory note is a courier without luggage by Clark to the Baker State Bank for their whose face is its own passport. To such exface value. The first note was paid at ma- tent do notes of this character enter into and turity, and this action was brought to en- form a substantial part of the very life of force payment of the other nine notes. The the commercial world that the law has alprincipal defense interposed is that the ten ways been solicitous to exclude any rules notes were given in payment for an automo- calculated to hinder their free circulation and bile, sold and delivered by Clark to the de-exchange. By the act of executing such an fendants under an express warranty that the instrument, the maker is held to have incar would perform the services required of tended that it may enter the channels of it by defendants in conducting an automobile trade and pass from hand to hand unincumstage line between Ekalaka and Baker; that bered by any defense not known to exist at the time the notes were transferred by when the transfer is made. The rule is conClark, the bank knew the terms under which cisely stated in 3 Ruling Case Law, 1067, as the automobile was sold and the notes given; follows: that the car failed to render the services contemplated, and was finally turned back to Clark about October 1st; that there was a failure of consideration, and that the bank is not a holder in due course. Issue was joined by reply. At the conclusion of the testimony the court directed a verdict for the plaintiff, and defendants appealed. "The courts universally hold that knowledge that a note was given in consideration of the executory agreement or contract of the payee which has not been performed will not deprive the indorsee of the character of a holder in due course, unless he also has notice of the breach of that agreement or contract. So knowledge given is held not to affect the rights of a purof a warranty on a sale in which a note was chaser of the note for value before maturity, if [1] While there is some conflict in the tes- he had no knowledge of the breach of the wartimony as to the knowledge possessed by the. W. 665, 8 L. R. A. 428, 21 Am. St. Rep. ranty." Miller v. Ottaway, 81 Mich. 196, 45 bank at the time it purchased the notes, for 513; Jennings v. Todd, 118 Mo. 296, 24 S. W. the purpose of these appeals the evidence will 148, 40 Am. St. Rep. 373; Rublee v. Davis, be treated in the light most favorable to the 33 Neb. 779, 51 N. W. 135, 29 Am. St. Rep. defendants and as establishing that the bank 509 Siegel, Cooper & Co. v. Chicago Trust & Savings Bank, 131 Ill. 569, 23 N. E. 417, 7 knew what the consideration for the notes L. R. A. 537, 19 Am. St. Rep. 51; United was, and knew the terms of the contract of States Nat. Bank v. Floss, 38 Ör. 68, 62 Pac. warranty. 751, 84 Am. St. Rep. 752; 8 Corpus Juris, 509. [2, 3] The notes were transferred to the bank on the day following their execution, and at a time when there had not been any breach of warranty to the knowledge of any one. If at the very instant it purchased the notes, the bank had made inquiry of the defendants, it could not have ascertained that there was then any possible outstanding defense. It did know that the car was warranted to a certain standard of service, but it had a right to presume that the contract of warranty would be carried out in good faith, Certainly it could not anticipate that a contingency which might never happen would certainly happen. If a breach had occurred before the notes were transferred and the bank knew of such breach, it could not claim to be a holder in due course; but no one knew or could know at that time that the car would not meet all the requirements contemplated by the purchasers. Does the fact, then, that the bank knew when it took the A clear distinction is to be drawn between the case at bar and the cases cited above, on the one hand, and cases of which Citizens' State Bank v. Garceau, 22 N. D. 576, 134 N. W. 882, is typical, on the other. In the last case, Garceau executed and delivered his promissory note to Stevens in payment of the first premium on a policy of life insur ance. The note accompanied the application. Title to the note was to pass to Stevens if the application was accepted by the insurance company and the policy issued; otherwise the note was to be returned to Garceau. Before the application was acted upon, Stevens indorsed and transferred the note to the bank, which then knew all the facts concerning the transaction. The application for insurance was rejected, and in an action by the bank to collect the note, the court held that Stevens did not have an unqualified title to the note, and the bank, with knowledge, acquired LICE OFFICERS LIABILITY ON BOND. jection of the application the consideration 6. MUNICIPAL CORPORATIONS 189(1)-Pofor the note failed altogether, and that the maker could properly avail himself of the defense that the bank was not a holder in due course. In the case at bar, the unqualified title to the note passed to Clark upon the delivery of the automobile, and upon indorsement by him the title passed to the bank, free from any defenses not then known to exist. [4] The plaintiff brings itself within the definition of a "holder in due course," as given in section 5900 above. The trial court ruled correctly, and its judgment and order are affirmed. Affirmed. surety for death from accidental shooting of de- 189(1)-Po [Ed. Note.-For other cases, Corporations, Cent. Dig. § 523.1 7. MUNICIPAL CORPORATIONS LICE OFFICERS-LIABILITY ON BOND. Under L. O. L. §§ 348, 349, as to bonds of city officers, and allowing action thereon by the surety company bonding city detectives was one injured by the principal's delinquency, a properly joined in action against them for death from their negligent shooting; and a prior judgment against the principals and satisfaction by them was unnecessary, for, the bond having bond, and deemed to give the statutory remedy. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 523.] BRANTLY, C. J., and SANNER, J., concur. been given under the statutes, it was an official (85 Or. 333) ASKAY v. MALONEY et al. (Supreme Court of Oregon. July 3, 1917. Re hearing Denied July 24, 1917.) 1. ARREST 68-USE OF FORCE-POLICE OF FICER. 8. JURY 131(5)-EXAMINATION OF JURORS. Police detectives, having arrested one who they had reason to believe, and evidently believed ed, had committed a felony, had the right, when he broke away, to use such means and degree of force as were reasonably necessary to recapture him, including shooting at him, if without evil design and under circumstances of imperative duty. [Ed. Note.-For other cases, see Arrest, Cent. Dig. §§ 166-169.] Multnomah County; Henry E. McGinn, Action by Thomas M. Askay against Patrick R. Maloney and others. From judgment 2. MUNICIPAL CORPORATIONS 744-POLICE for plaintiff, defendants appeal. Reversed DETECTIVE-NEGLIGENT SHOOTING-LIABIL- and remanded. ITY. Although a police officer might justifiably discharge a weapon to recapture an escaping prisoner, yet if the shooting were done in a public place, where the police officer should have known that people were likely to congregate or pass, it might constitute such negligence as to render the officer civilly liable for such injury as he might inflict upon an innocent person. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1565.] 3. EVIDENCE 14-JUDICIAL NOTICE - Ex PECTANCY OF LIFE. Without offering in evidence accepted standards of mortality tables to show the expectancy of life, a court will take judicial notice of the average duration of the life of a healthy person of the age of one whose death is under consideration. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 19.] 4. TRIAL 255(11) — INSTRUCTIONS QUESTS FOR. --- RE In an action for death, for the jury to have the benefit of knowledge derived from mortality tables, plaintiff's counsel should request an instruction giving information on that subject. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 637.] 5. TRIAL 252(8)-INSTRUCTIONS-ABSTRACT INSTRUCTIONS. In action for wrongful death, an instruction as to damages, considering deceased's age, habits, etc., not based on any evidence as to most of the elements adverted to, was abstract, and therefore erroneous. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 603.1 This is an action by T. M. Askay against P. R. Maloney, T. Swennes, and the Southwestern Surety Insurance Company, a corporation, to recover damages for the death of plaintiff's son, Walter E. Askay, which was caused by a gunshot wound. The material facts are that after dark, on December 25, 1914, W. Hines was assaulted upon a street in Portland, Or., by two colored men, who forcibly took from him a watch and some money. He reported the loss to the city police department, and the defendants, Detectives Maloney and Swennes, were detailed to investigate the case. They, with Hines, went to the vicinity of the robbery, where in a saloon they found two men, one of whom, John Jones, was recognized by Hines as his assailant. The officers arrested both men, and found in Jones' pocket a watch which Hines identified as having been taken from him. Jones in charge of Maloney, and the other man in the custody of Swennes, accompanied by Hines, about 10 o'clock at night, started walking to the city jail. When they reached the corner of Oak and Sixth streets, Jones broke away and ran north on the east side of Sixth street, pursued by Maloney. Thereupon Hines took charge of the other man, whom he conducted to the municipai prison, and Swennes joined in the chase. The streets being slippery from falling rain, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Jones and Maloney fell as each turned east red to the complaint, on the ground that it on the south side of Pine street. Jones, has- did not state facts sufficient to constitute tily rising, continued his journey, when Ma- a cause of action. These demurrers having loney, getting upon his feet, commanded the been overruled, the Southwestern Surety Infleeing man to halt, telling him that if he did surance Company declined further to plead. not obey he would be shot. Paying no heed Maloney and Swennes, however, separately to the order, Jones turned northeasterly to answered, denying the material averments of ward a covered wagon standing near the cen- the complaint, and for further defenses alter of the block, and continued running east lege, in effect, that in order to recapture on the north side of Pine street, when Malo- Jones, who had committed a felony in Portney shot twice at him with a revolver. There- land, Or., it became necessary to shoot at upon Swennes, having overtaken Maloney, him, and that with due care and caution also fired two shots from a revolver at Jones. these defendants, as officers authorized to In the meantime an electric car, unobserved make the arrest, shot at the fleeing man, but by either officer, was crossing Pine street go- in doing so they did not use any more force ing north on the east side of Fifth street, than was essential to catch the escaped prisand evidently one of the bullets so dischårg- oner, which discharge of weapons is the ed, piercing a window of the car, struck Wal-shooting alleged in the complaint. ter E. Askay in the neck. Jones again slipped and fell as he undertook to cross Fifth street, and was caught by the officers beside the car as it halted on the north side of Pine street to remove the injured passenger, who was taken to a hospital, where he died from the effects of the wound. Jones, having been tried for and convicted of the robbery, was sentenced to a term of imprisonment in the state penitentiary. Pursuant to a clause of the charter of Portland requiring police detectives to give a bond in the sum of $1,000, the defendant the Southwestern Surety Insurance Company, for a valuable consideration, executed an undertaking to reimburse the city or any person for loss sustained by reason of the failure of Maloney or Swennes faithfully to discharge his duties, and to make payment, to the extent of $1,000 each, of damages that might be adjudged against either officer by any tribunal for the illegal arrest, imprisonment, or injury by him of any person. The complaint alleges that the plaintiff was duly appointed administrator of his son's estate, and thereupon obtained from the trial court leave to institute this action against all the defendants. The facts hereinbefore detailed are substantially set forth in the complaint, which charges, in effect, that the intersection of Pine and Sixth streets is a business section of the city, and that while Maloney and Swennes knew persons were passing that place at all hours of the day and night, and that cars on Fifth street crossed Pine street at regular intervals carrying passengers, these officers carelessly and negligently discharged their weapons in such locality, thereby causing the death of the deceased, to the damage of his estate in the sum of $7,500. Judgment was demanded against the police detectives and each of them for $5,500, and against the Southwestern Surety Insurance Company for the further sum of $2,000. Motions to strike out parts of the complaint, and to make that pleading more definite and certain by alleging whether Maloney or Swennes fired the shot that caused the injury, were denied. Replies put in issue the allegations of new matter in the answers, and, the cause coming on for trial, the plaintiff introduced his evidence in chief. Whereupon counsel for Maloney and Swennes separately moved for a judgment of nonsuit, on the ground that no testimony had been offered tending to show that either officer was negligent. These motions were denied, and exceptions taken. When the cause was finally submitted, defendants' counsel requested the court to direct a verdict in favor of their clients on substantially the same grounds as last stated, which request was denied, and an exception saved. The jury, complying with the court's interrogatory, "Were the police officers warranted, under the instructions which I have given you, in firing upon the man John Jones, the man accused of robbery?" answered, "Yes." Verdicts were returned against Maloney and Swennes for $1,000, and against the Southwestern Surety Insurance Company upon its undertaking in behalf of such officers in the sum of $500 each. A judgment having been rendered in accordance with the verdicts, the defendants jointly appeal. Henry J. Bigger, of Portland (Stanley Myers, of Portland, on the brief), for appellants Maloney and Swennes. Chester V. Dolph, of Portland, for appellant Southwestern Surety Ins. Co. Richards & Richards, of Portland (Coy Burnett, of Portland, on the brief), for respondent. MOORE, J. (after stating the facts as above). [1, 2] It is contended that the special finding by the jury absolves the defendants from all civil liability, and, this being so, errors were committed in receiving the general verdicts and in rendering judgment thereon. A careful reading of the instructions given to the jury induces the belief that the word "warranted," as used by the court in its interrogatory, was intended to be understood as "justified." Maloney and Swennes, as members of the police force of Portland, Or., having reason to believe, and evidently believing, that a felony had been committed in that city, and that Jones was guilty the proprietors of a large department store, to drive a delivery vehicle, for which service he was paid $52 a month; and that he took his meals and lodged at a boarding house, but what he paid therefor is not disclosed. This includes the entire testimony upon which the instruction so challenged is based It will be assumed that, as in this case, without offering in evidence accepted standards of mortality tables to show the expectancy of life of Walter S. Askay, the court would have taken judicial notice of the average duration of a healthy person of the age of the deceased at the time he was shot. 16 Cyc. 871; Lanfear v. Mestier, 18 La. Ann. 497, 89 Am. Dec. 658, 694. In order that the jury might have had the benefit of such knowledge, however, they should have been informed on that subject, thereby imposing upon plaintiff's counsel the duty of requesting an instruction in relation thereto. degree of force as were reasonably necessary | lived until the month following his injury; to recapture him, and if they intentionally, that he was employed at Portland, Or., by but without evil design and under such circumstances of duty as to render their acts proper, and to relieve them from any shadow of blame criminally, shot at him, they were justified in doing so. Though a peace officer might discharge a weapon under the circumstances stated, and his act be justified, if, however, the shooting were done in a public place, where the officer understood or should have known people were in the habit of congregating or were likely to pass, the act might constitute such negligence as to render the officer civilly liable for any injury that he might inflict upon an innocent person. For a general discussion of this and kindred subjects, see Brown v. Kendall, 6 Cush. (Mass.) 292; Morris v. Platt, 32 Conn. 75; Paxton v. Boyer, 67 Ill. 132, 16 Am. Rep. 615; Shaw v. Lord, 41 Okl. 347, 137 Pac. 885, 50 L. R. A. (N. S.) 1069, Ann. Cas. 1916C, 1147. The acts of the officers, so far as they related to Jones, were evidently "warranted" in | using the force employed to recapture him. While this conclusion is reasonably deducible from the evidence as specially found by the jury, their answer to the question propounded to them by the court does not inevitably show that the detectives were blameless civilly in shooting in a place where they knew or should have known street cars were passing at regular intervals. No error was committed in treating the special finding as advisory only. [3, 4] An exception was taken to a part of the court's charge, and it is maintained that an error was committed in instructing the jury as follows: "You will, therefore, take into consideration what you know of Walter Askay as it has been developed in the testimony, considering his age, his habits of industry, his habits of sobriety, his habits of saving. What would he, from his physical and intellectual abilities, have acquired if he had finished out his life? The elements which I have given to you of a sentimental nature are, of course, to be taken out of the case and not to be considered. It is the value of the estate. That is what is sued for here, and that is the amount which must be given. Then award the plaintiff the amount which you think he is entitled to receive against Mr. Maloney and Mr. Swennes, and the amount which you think should be recovered against the insurance company." [5] In Morrison v. McAtee, 23 Or. 530, 536, 32 Pac. 400, 402, Mr. Justice Bean, referring to standard mortality tables showing the expectation of life of a person at a given age, observes: "They are simply the result of calculations based upon a certain average rate of mortality as shown by experience, and assuming that all of the same age are of equal value. But the constitution, habits, and health of individuals differ essentially, and this must be taken into consideration in estimating the probable length of life of any given person, and therefore no ordinary table of expectation of life, although it may offer much valuable information, can alone be taken as a correct rule for estimating the value of the life of any particular individual." In the trial of a cause before a jury, the judge cannot usually give constant attention to the reception of the entire evidence, for some thought must be bestowed upon the preparation of instructions appropriate to the issues and consonant with the testimony necessary to substantiate the averments of the respective parties, and for that reason it is sometimes assumed, as was evidently done in this instance, that the requisite proof had been made and the jury charged in reSuch instructions, however lation thereto. correctly they may announce the legal principle involved by the pleadings, are abstract, when not supported by any evidence, and hence they are erroneous. Morris v. Perkins, 6 Or. 350; Glenn v. Savage, 14 Or. 567, 13 Pac. 442; Bailey v. Davis, 19 Or. 217, 23 Pac. 881; Bowen v. Clarke, 22 Or. 566, 30 Pac. 430, 29 Am. St. Rep. 625; Geldard v. Marshall, 47 Or. 271, 83 Pac. 867, 84 Pac. 803; Olsen v. Silverton Lumber Co., 67 Or. 167, 135 Pac. 752. The objection thus urged is not against the language so employed, which is a fair exposition of the rule generally applicable to a case of this kind; but it is insisted by defendants' counsel that no testimony was offered tending in any manner to substantiate most of the elements adverted to by the court as the basis to be considered in estimating and measuring the damages to be awarded, In view of the conclusion thus reached, it thereby rendering the instruction improper. is deemed important to consider some quesA careful examination of the entire testimo- tions that may again arise. Thus it is cerny given at the trial, a transcript of which tain that both police detectives could not is duly certified to and made a part of the have discharged the single bullet which causbill of exceptions, shows that Walter S. As-ed the resulting death. In Wert v. Potts, 76 kay would have been 21 years old if he had Iowa, 612, 614, 41 N. W. 374, 375 (14 Am. St Rep. 252), it was held that, where several The undertaking given by the surety comparties were lawfully engaged in the company on behalf of Maloney and of Swennes, mon purpose of making an arrest, and one who with others are named as the offiof them, in furtherance of such design, but cers for the faithful performance of whose without the concurrence of his associates, several duties the bond was executed, comcommitted a tort, the others were not liable plies with the requirements of the clause of therefor. In deciding that case Mr. Justice | the municipal charter mentioned. This unBeck remarks: dertaking was therefore an official bond. Murfree, Official Bonds, § 35. "Surely no one is ready to claim that officers and others, acting in concert in making a lawful arrest, are liable for the unlawful act of one of their number, done without their concurrence." To the same effect, see Richardson v. Emerson, 3 Wis. 319, 62 Am. Dec. 694. "Official bonds will not be declared invalid by the courts, except on the most satisfactory grounds." 4 R. C. L. 53. "Except where the statute, either expressly or impliedly, declares all bonds void which do not strictly comply with the requirements therein prescribed, a bond need not be in the exact words of the statute, and the fact that it slightly varies from the form prescribed will not invalithat the statute requires, that is, such obligadate it, provided it includes substantially all tions as are imposed by the statute, and allows every defense given by law, as where it is more specific than the statute requires, but imposes no additional obligation." 9 C. J. 24. [6] In the case at bar there was at least a tacit concurrence in the commission of the alleged tort, for it will be remembered that both officers were discharging their revolvers In an attempt to effect the recapture of Jones, when one of the bullets struck a passenger on a street car. It is unquestionably important to the Southwestern Surety Insur- To the same effect, see 2 Brandt, Suretyance Company that the jury should find, if ship Guaranty (3d Ed.) section 664; 5 Cyc. possible, whether Maloney or Swennes fired 754; Growbarger v. United States Fidelity the shot which caused the injury, for if only | & G. Co., 126 Ky. 118, 102 S. W. 873, 11 L. one of the officers was guilty of negligence in R. A. (N. S.) 758, 128 Am. St. Rep. 274; discharging his weapon in the direction of Martin v. Smith, 136 Ky. 804, 125 S. W. 249, where he must have known street cars would 29 L. R. A. (N. S.) 463; Lee v. Charmley, 20 pass at regular intervals, the greatest judg-N. D. 570, 129 N. W. 448, 33 L. R. A. (N. ment that could be rendered against the S.) 275. surety company is necessarily limited to the sum of $1,000, the amount of the indemnity specified in the bond. If, however, the jury will be unable certainly to determine this question from the evidence to be received, the plaintiff should not be denied any relief because of his inability to identify the police detective who fired the fatal shot, when both officers were discharging their revolvers, and when it is borne in mind that the surety company executed the indemnity undertaking for a consideration. No error was committed in denying the motion to require the plaintiff to elect the officer who caused the injury. Our statute declares: * city* "The official undertaking or other security of a public officer to the ⚫ city shall be deemed a security to the * * * and also, to all persons severally for the official delinquencies, against which it is intended to provide." L. O. L. § 348. "When a public officer by official misconduct or neglect of duty shall forfeit his official undertaking or other security, or render his sureties therein liable upon such undertaking or other security, any person injured by such misconduct or neglect, or who is by law entitled to the benefit of the security, may maintain an action at law thereon in his own name, against the officer and his sureties, to recover the amount to which he may by reason thereof be entitled." Id., § 349. [7] The motion of the Southwestern Surety Insurance Company to strike from the com[8] Though the motion and demurrer last plaint all reference to the giving of a bond referred to are, first, in the nature of an obon behalf of the police detectives, on the jection to the complaint for an alleged misground that such allegations were irrelevant, joinder, and, second, tantamount to a plea and the demurrer to that pleading, for that in abatement, they are without merit, and it did not state facts sufficient to constitute no error was committed in denying the a cause of action, were predicated on the motion or in overruling the demurrer. assumption that the surety company, by ex- The Southwestern Surety Insurance Compress stipulation contained in the undertak-pany thus being a proper party defendant, ing, was not primarily liable, nor even amenable, until a judgment rendered against those officers had not been discharged by them. Section 152 of the charter of the city of Portland, as amended June 3, 1907, requires every detective to give a bond in the sum of $1,000 "for the faithful discharge of his duties, and the payment of any damage that may be adjudged against him by any tribunal for the illegal arrest, imprisonment, or injury by him to any person. no error was committed in permitting persons called as jurors to state, over objection and exception, upon their voir dire that they were not and never had been interested in indemnity security companies. For the error committed in giving the instruction hereinbefore set forth, the judgment is reversed, and a new trial ordered. MCBRIDE, C. J., and BEAN and McCAMANT, JJ., concur. |