WATKINS v. MINTER et al., 180 S.W. 227

PHILLIPS, C. J. The questions which are certified by the honorable Court of Civil Appeals for our determination arise upon the action of the trial court in sustaining the general demurrer of the defendants there, L. B. Minter, A. H. Minter, and L. A. Lollar, to the petition of the plaintiff in the suit, J. C. Watkins. The petition contained two counts. Under the first recovery was sought in the sum of $3,000 upon a bond executed by the defendants, which reads as follows: “Official Bond. “State of Texas, County of Hopkins. “Know all men by these presents that we, L. B. Minter as principal, and A. H. Minter and D.

A. Lollar as sureties, are held and bound unto F. W. Patterson, county judge of Hopkins county, Texas, and to his successors in office in the sum of $3,000 for the payment of which we hereby bind ourselves and our executors and administrators jointly and severally by these presents. Signed with our hands and dated this the 5th day of Sept., A. D. 1910. “The condition of the above obligation is such that whereas on the 5th day of September, 1910, Claude Minter was duly and legally adjudged a lunatic in Hopkins county, in the state of Texas: Now, therefore, if the said L. B.

Minter shall faithfully protect and cause to be protected all animal and human life and become responsible for all damages that may hereafter arise by reason of the acts of the said Claude Minter and the said L. B. Minter will deliver the said Claude Minter into the hands of F. W.

Patterson, county judge, upon demand to be dealt with as the law directs in such cases, then this obligation is to be void, otherwise to remain in full force and effect.” In this connection the averments of the petition, in substance, were that the Claude Minter referred to in the bond, prior to its execution, had been adjudged a lunatic, being then violently insane and dangerous, as was well known to the defendants; that the defendants were his relatives and friends, and executed the bond in order to obtain his custody and to prevent his incarceration in the county jail while awaiting removal to the asylum; that upon the execution of the bond Claude Minter was delivered to the custody of the defendants, who undertook to care for him, but they negligently permitted him to go without restraint, during which time he came unexpectedly into the plaintiff’s residence and assaulted him with a knife, inflicting upon him serious injuries.

The certificate states that the averments of the1 petition are sufficient to constitute a cause of action, if the bond, executed under the circumstances related, will support the action.

In the second count, the averments in respect to the insanity of Claude Minter and his having been adjudged a lunatic, were reiterated; it being further alleged, in effect, that the defendants, on account of their relationship and friendship for him, desired to have charge of him pending his removal to the asylum; and promised and obligated themselves to the county judge and other officers of the county that they would control him and be responsible for all damages to the person or property of others that he might cause, and would return him to such officers ■on demand, if permitted to have his custody; that upon such promise and obligation, he was delivered into their possession by the county officials; that the defendants thereupon became responsible for his control and restraint, but shortly afterwards negligently permitted him to escape and go to the plaintiff’s house and commit an assault upon him with a knife, causing his damages in the sum of $3,000, which would not have occurred had they exercised ordinary care in his management and control.

The questions certified are as follows: Did the petition state a good cause of action on the bond? If not, did it state a good cause of action for common-law negligence? Did the court err in sustaining the general demurrer? At the time of the execution of the bond, September 5, 1910,

article 140, Revised Statutes of 1895, governed the terms in which a bond of this nature was required to be executed.

It read: “No warrant to convey a lunatic to the asylum shall issue if some relative or friend of the lunatic will undertake, before the county judge, his care and restraint, and will execute a bond in a sum to be fixed by the county judge, payable to the state, with two or more good and sufficient sureties to be approved by the county judge, conditioned that the party giving such bond will restrain and take proper care of the lunatic so long as his mental unsoundness continues, or until he is delivered to the sheriff of the county or other person, to be proceeded with according to law; which bond shall be filed with and constitute a part of the record of the proceeding, and may be sued and recovered upon by any party injured, in his own name.” The bond here differs from the bond of the statute in having been made payable to the county judge of Hopkins county, instead of the state, and in carrying a somewhat onerous condition.

It cannot therefore be sustained as a statutory bond. Johnson v. Erskine, 9 Tex. 1. Under the averments of the petition it was good, however, as a common-law obligation. The rule which controls the question is dearly stated in Leona, etc., Co. v. Roberts, Governor, 62 Tex. 615: “ ‘The general rule is that a bond, whether required by statute or not, is good at common law if entered into voluntarily, and for a valid consideration, and if not repugnant to the letter or policy of the law.’ Thompson v. Buckhannon, 2 J. J. Marsh. 416.

All persons of proper age and discretion may make such contracts, and they will be binding although one of the parties was the superior of the other in authority, provided they stood upon equal terms in making the contract. But if the bond is exacted colore officii, or as the condition to some act or proceeding to which the party would be entitled without giving the bond, it will be void for duress. Germond v. People, 1 Hill (N. Y.) 343; Perry v. Hensley, 14 B. Mon. [Ky.] 474 [61 Am. Dec. 164] ; Aucoin v. Guillot, 10 La. Ann. 124; United States v. Tingey, 5 Pet. 115 [8 L. Ed. 66]; United States v.

Bradley, 10 Pet. 361 [9 L. Ed. 448]. “Such is the result of all the decisions bearing upon this question, and the principle derived from them is decisive of this appeal. Eichoff v. Tidball, 61 Tex. 421; Wooters v. Smith, 56 Tex. 199; Dignan v. Shields, 51 Tex. 322; Alexander v. Silbernagel, 27 La. Ann. 557; Harris v. Simpson, 4 Litt. [Ky.] 165 [14 Am. Dec. 101]; Churchill v. Perkins, 5 Mass. 541; Hawes v. Marchant, 1 Curt. 150 [Fed. Cas. No. 6,240], and the authorities already cited.” Its definite expression is also found in City of Marshall v. Bailey, 27 Tex. 686, and National Bank v. Sester, 73 Tex. 542, 11 S.

W. 626, and application of it is made in the further cases of Jacobs v. Daugherty, 78 Tex. 682, 15 S. W. 160; Edmiston v. Concho County, 21 Tex. Civ. App. 339, 51 S. W. 353; and Hines v. Norris (Civ. App.) 81 S. W. 791. The bond was not opposed to the policy of the law; the statute required a bond of its general nature as a condition for the release of an insane person from custody. For the same reason it was not exacted in relation to a right which the defendants were entitled to exercise without the giving of any bond. It was supported by a sufficient consideration — the discharge of Claude Minter from custody.

Its validity as a common-law obligation is therefore to be determined according to whether its execution and delivery was voluntary. The certificate of the Court of Civil Appeals in its recital of the contents of the first count of the plaintiff’s petition does not reveal the state of the pleading in this particular. In answering a certified question our practice is to predicate the answer solely upon the statement of the case as contained in the certificate of the Court of Civil Appeals. If we look merely to the certificate, our answer to the present question would necessarily be hypothetical.

The petition itself, as contained in the transcript of the record of the case, accompanies the certificate and is before us. It shows that recovery was sought upon the bond as a common-law obligation in the event it should be held insufficient as a statutory obligation. In that part of the petition it is distinctly alleged that the bond was executed and delivered by the defendants, voluntarily and of their own accord, for the purpose of obtaining Claude Minter’s custody and control. It appears to have been framed with the rule to which we have adverted in the mind of the pleader.

As the question certified turns on the state of the pleading, we will, in the present case, look beyond the certificate to the averments of the petition. Under the allegation, that the execution and delivery of the bond was altogether voluntary on the part of the defendants, the petition stated a cause of action on the bond as a common-law obligation, and the first question certified is accordingly answered in the affirmative.

According to the petition the defendants obtained Claude Minter’s release from custody without giving the bond which the statute required, but through a bond, the terms of which they voluntarily imposed upon themselves. If it was given under such circumstances, they are in no position to say, accomplishing as it did the full purpose of the statutory bond, that it was extorted from them; and no sound reason can be advanced why it should not be enforced. Being only a common-law obligation, the bond derives no aid from the statute.

But its terms are such as to clearly render it enforceable without reference to the statute. Its condition is that the principal of the bond, L. B. Minter, will faithfully protect and cause to be protected all human and animal life from the acts of the insane person released into his care, and will be responsible for all damages that might arise by reason of such person’s acts. Under these terms it is plain that a suit could be maintained on the bond by the obligee therein for the use of any one injured as the result of L. B.

Mister’s negligence in his restraint of the lunatic; and a person for whose use such a suit might be maintained could himself prosecute it. Martel v. Somers, 26 Tex. 551; Smith v. Wingate, 61 Tex. 54. It follows that the trial court erred in sustaining a general demurrer to the petition. Under our answer to the first question, a determination of the second question is unnecessary. ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (g^jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes