(dissenting) :• The importance of the principle here involved impels me to state briefly, at least, the reason why I cannot concur in the court’s opinion. ...
■ The marshal’s bond was conditioned that he should “well and faithfully perform, according to law, all and singular the duties incumbent upon him.”
The law, with reference to a surety’s liability on a, bond of this nature is so well established as hardly to require citation of authority. The surety is not liable unless the act complained of was done by the principal under color and by virtue of his official position and was incident to the performance of his official duty. ■
The general rule is stated in 43 Am. Jur. 187, § 418, Public Officers, as follows: ' '
“In general, where the law defines the duties of a public officer, his sureties are responsible for the faithful performance thereof and are liable for wrongful acts in the discharge of his official duties, or for his failure properly to perform the duties imposed on him, provided, of course, injury proximately results, but are not liable for acts which do not pertain to official duties, unless they give their assent thereto.”
In 46 C. J. 1068, § 399, Officers, the rule is stated: .
“Liability upon an official bond arises as a rule only with reference to acts *717of the officer which pertain to some function or duty which the law imposes upon his office. Thus sureties are not liable for a purely personal act of an officer not done as a part of, or in connection with, his official duties; and where he acts without any process and without the authority of his office, or under process void on its face, in doing such act, he is'not to be considered an officer but a personal trespasser.”
(See, also, 57 C. J. 1013.)
Countless illustrations might be drawn from the reported cases showing the line of distinction between acts that were incident to the performance of an official duty, and acts done while the officer was in the performance of an official duty but which had no relation thereto. Eor instance, if a peace officer uses unwarranted force or violence in making arrest, or if, by negligent acts connected with the making of the arrest, injures a third party, he is liable. But if at the time he is making an arrest or is conducting the prisoner to jail, or is performing some other official duty he does something in no way connected with or incident to the performance of that duty, the surety is not liable.
I find nothing in the allegations of fact in the instant petition which, in any way, makes the alleged assault incident to the performance of the marshal’s duty. The court’s opinion stresses the fact that the defendant filed no motion to make definite and certain, and invokes the well-established rule that in the absence of such a motion the petition must be liberally construed. Very true. But failure to file such a motion does not make good a petition which fails to state a cause of action. As I read the petition, it contains no allegations of fact, directly or by reasonable inference, that the alleged assault was committed as a part of, or as an incident to, the official act which the marshal was then performing.
The petition, in substance, simply alleges that the marshal, “while acting under color and by virtue of his said office,” and “while present at the booking desk,” and “while booking a prisoner for an alleged violation” of ordinances and laws of the state, and “while said defendant was in the performance of his official duties as marshal,” committed the alleged assault. (Italics supplied.) There is no allegation that the plaintiff was in any way connected with the booking of the law violator, or even that his presence had any connection therewith, or that the assault was incidental in any way to the performance of the official act. Boiled down, the allegation asserts nothing except that while the marshal was performing an official act — no such act except the booking of a law violator being specified *718or indicated — he made an assault upon the plaintiff. Suppose the allegation had been that while the marshal was at the police station booking a law violator, and while acting by virtue of his office, he negligently tossed a lighted cigarette into a wastebasket and started a fire causing property damage. Could it be said that his negligent act was incidental to the performance of his official duty and that the surety would be liable? Or, suppose it had been alleged that while the marshal was conducting a prisoner down the street on the way to the jail and while he was thus performing an official duty by virtue and color of his office, he picked up a rock and threw it through a window. Would such an act be one within the terms of the bond? Certainly not. . . the sureties do not bind themselves to protect the public against every act of their principal, nor do they become his sureties to keep the peace.” (43 Am. Jur. 188, § 418, citing on the latter point, State v. Conover, 28 N. J. L. 224, 78 Am. Dec. 54.)
“A breach of his duties as a man and a citizen may render an officer personally liable, but it does not create any liability on the part of the sureties on his official bond.” (91 Am. St. Rep. 510.)
In State v. Dayton, 101 Md. 598, 61 A. 624, a constable went with a writ to the store of a judgment debtor, one Mary Beedle, to levy upon goods therein “ 'and then and there the appellant, who was a clerk and agent of the said Mary Beedle protested against such proceeding, and offered money sufficient to pay the judgment, and the costs thereon,’ and after she again protested, the said Dayton 'seized her by the wrists and twisted and sprained her wrist, in a rough and cruel manner and beat and bruised her in such a manner, etc.’ ” This was a stronger case for holding the surety liable than the instant one, for the reason that the alleged assault there was made upon the plaintiff as a result of her protest against the proceedings and her offer to pay the judgment. In the instant case, no connection whatever is alleged between the assault and the official act then being performed by the. marshal. But even under the stronger facts of the Dayton case, the surety was held not liable and in the opinion it was said:
“There is no complaint that the constable did not perform the duty he was commanded to perform by the writ; but the grievance is that he did something that neither his writ nor his office, directed or authorized; that is, that he assaulted another person than those named in the writ. It seems unnecessary to discuss the matter at greater length. It is clear that in as*719saulting the appellant he could not have been acting in the discharge of any official duty; and if that is so, while he himself is responsible as a tort-feasor, his sureties are not.” (pp. 599, 600.)
Appellee cites Farmer v. Rutherford, 136 Kan. 298, 15 P. 2d 474, and quotes from page 305 as follows:
“It is the duty of the sheriff to keep and preserve the peace in his county, and to apprehend any person for felony or breach of the peace. . . . It is clearly the duty of the sheriff to safely keep and protect all prisoners in his charge. ... It can hardly be argued that a sheriff is faithfully performing the duties of his office without oppression where he assaults and beats a prisoner in his charge." (Italics supplied.)
Certainly that is good law, but in that case the assault complained of was one upon the prisoner in the officer’s charge. That, of course, was an unlawful act committed in an improper performance of his duties.
Appellee also cites part of a statement from 43 Am. Jur. 187, § 418, Public Officers, as follows:
“. . . his sureties are responsible for the faithful performance thereof, and are liable for wrongful acts in the discharge of his official duties, or for his failure properly to perform the duties imposed upon, provided, of course, injury proximately results, . . .”
This is taken from the same statement which I cited earlier herein. Even in the part quoted, the liability covers only unlawful acts, or failure properly to perform acts, in the discharge of official duties. And if appellee had quoted the remainder of the same sentence, he would have found these words:
“but are not liable for acts which do not pertain to official duties, . . .”
The demurrer should have been sustained.
Burch, J., concurs in the foregoing dissent.