Bryan v. Pogue

18 S.W.3d 529, 2000 Mo. App. LEXIS 761, 2000 WL 662936
CourtMissouri Court of Appeals
DecidedMay 23, 2000
DocketNo. WD 57834
StatusPublished

This text of 18 S.W.3d 529 (Bryan v. Pogue) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryan v. Pogue, 18 S.W.3d 529, 2000 Mo. App. LEXIS 761, 2000 WL 662936 (Mo. Ct. App. 2000).

Opinion

LAURA DENVIR STITH, Judge.

. Plaintiff-Appellant, Wendell Patrick Bryan, for himself and as guardian of the estate of Denise Bryan, his wife, appeals the trial court’s entry of judgment in favor of Defendants-Respondents, Missouri State Highway Patrolman J.P. Lysaught and the Missouri State Highway Patrol, on their motion for summary judgment. Plaintiff claims that the trial court erroneously interpreted Section 270.010 RSMo 1994, which provides that a sheriff or other officer who improperly discharges his duties under that section shall be “hable on his bond.” The trial court held that this statute constitutes a limited waiver of the official immunity doctrine only to the extent of the officer’s bond, and where, as here, the officer has no bond and is not required by law to have one, then the statute provides no basis for liability and the official immunity doctrine applies to protect him from liability for his discretionary official acts. We concur with the trial court’s interpretation of the statute, and affirm the grant of summary judgment.

I. FACTUAL AND PROCEDURAL HISTORY

The factual underpinnings of this case are set out in the previous opinion of this Court in this matter, Bryan v. Lysaught, 963 S.W.2d 403 (Mo.App. W.D.1998) (“Bryan I”), and we refer the reader to that case for a fuller factual discussion. As relevant to this appeal, we note only the following basic facts:

On December 4,1990, Denise Bryan was driving from Columbia, Missouri, to her home in Marshall, Missouri. Ms. Bryan was employed as a travel agent at Summit Travel in Columbia at the time. At approximately 7:13 p.m., Ms. Bryan collided with a cow in the northbound lane of Highway 65, approximately two miles south of Marshall. She was then hit in the rear by a vehicle operated by James Chitwood. Ms. Bryan suffered severe and permanent injuries as a result of this accident.

Wendell Patrick Bryan, Ms. Bryan’s husband, was named guardian of Ms. Bryan’s estate and initiated a lawsuit against Franklin Pogue, James Chitwood, the Saline County Sheriffs Department, Highway Trooper J.P. Lysaught, and others. Mr. Bryan also filed a loss of consortium claim. The Missouri Highway Patrol and Trooper Lysaught are the only remaining defendants in this action.

Discovery revealed that, on December 4, 1990, at approximately 6:40 p.m., 33 minutes prior to Ms. Bryan’s accident, Trooper Lysaught was advised by Troop A radio dispatch that an accident had occurred on Highway 65, involving a car driven by Garret and Phoebe Jones and a cow. Trooper Lysaught arrived at the scene of the initial accident by 6:45 p.m. Based on his interview with the Joneses and inspection of the automobile, Trooper Lysaught determined that the initial accident was caused by a “short-horned red” cow belonging to Franklin Pogue. Trooper Ly-saught said that he searched for the cow in the vicinity of the accident, but he could not find the cow. He remained at the scene and “worked” the accident for 30 minutes, and drove up and down Highway 65 in search of the cow, but still did not see it. Ultimately, he left the scene in order to transport the Joneses to a Con-cordia High School basketball game.

Upon arriving in Concordia, Trooper Lysaught was advised by Troop A radio dispatch that another accident had occurred on Highway 65. This accident occurred a few hundred feet away from the location of the Joneses’ accident. According to the police report, the second accident occurred at 7:13 p.m. and involved Denise Bryan, a short-horned red cow, and another automobile. The police report indicates that Trooper Lysaught arrived at the scene of Ms. Bryan’s accident at 7:34 p.m. According to the police report, nine cows were wandering loose in the immediate vicinity of Ms. Bryan’s accident. Eight [531]*531of the cows were owned by Franklin Po-gue.

On September 9, 1996, Trooper Ly-saught filed a motion for summary judgment. On January 16,1997, the trial court entered summary judgment in his favor, stating that “Lysaught complied with the provisions of Section 270.010 RSMo and did not violate his duty under that statute because he looked for any cattle running at large and tried to determine if any cattle were at large.” The court found that, having attempted to fulfil his duty, Trooper Lysaught was entitled to official immunity as to how he performed that duty, in that the duty imposed by Section 270.010 was a “discretionary” one. The trial court also found that the Missouri Highway Patrol is an agency of the State and protected by sovereign immunity. It then granted summary judgment to Trooper Lysaught and the Highway Patrol.

Bryan I reversed the January 16, 1997 grant of summary judgment, finding that a genuine issue of material fact existed regarding whether the trooper fulfilled his statutory duty under Section 270.010. If not, then, the court held, although the trooper’s exercise of his duty to locate and restrain the cow was a discretionary function, and therefore protected under the official immunity doctrine, Section 270.010 partially waived that immunity by providing that an officer is liable to the extent of his bond. Id. at 406-07. Stating that under the statute, “by implication, an officer cannot be held liable in excess of his bond,” Bryan I remanded for further proceedings.

On September 20, 1999, following Bryan I, the trial court again granted summary judgment in favor of Trooper Lysaught. The court found that, as Trooper Lysaught was not required to file a bond under Section 43.140, and had not done so voluntarily, the statutory waiver of official immunity to the extent of the trooper’s bond did not apply, and the trooper could not be hable for the injuries sustained by Mr. Bryan. This appeal followed.

II. STANDARD OF REVIEW

Appellate review of the propriety of summary judgment is de novo. Williams v. City of Independence, 931 S.W.2d 894, 895 (Mo.App. W.D.1996). We view the record in the light most favorable to the party against whom summary judgment was entered, affording that party ah reasonable inferences that may be drawn from the evidence. Id. We will affirm the grant of summary judgment if we determine that no genuine issues of material fact exist and the movant has a right to judgment as a matter of law. Id.

III. LEGAL ANALYSIS

Mr. Bryan raises two related points on appeal. First, he claims that the trial court erred in construing the language in Section 270.010 that an officer is “liable on his bond” to mean that an officer cannot be hable if he or she has not obtained a bond. He also argues that to interpret the statute to allow an officer to escape liability by not obtaining a bond would render the protection intended to be provided by the statute illusory, for one could avoid liability merely by not obtaining a bond.1

Section 270.010 states in relevant part:

It shall be unlawful for the owner of any animal or animals of the species of [532]

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Related

Bryan v. Missouri State Highway Patrol
963 S.W.2d 403 (Missouri Court of Appeals, 1998)
Kanagawa v. State by and Through Freeman
685 S.W.2d 831 (Supreme Court of Missouri, 1985)
Bachmann v. Welby
860 S.W.2d 31 (Missouri Court of Appeals, 1993)
Williams v. City of Independence
931 S.W.2d 894 (Missouri Court of Appeals, 1996)
Bandy v. State
847 S.W.2d 93 (Missouri Court of Appeals, 1992)
Abramson v. Abramson
788 S.W.2d 860 (Court of Appeals of Texas, 1990)
Smith v. Berryman
199 S.W. 165 (Supreme Court of Missouri, 1917)

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Bluebook (online)
18 S.W.3d 529, 2000 Mo. App. LEXIS 761, 2000 WL 662936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryan-v-pogue-moctapp-2000.