holding that under this Court’s statutory construction, “it has the same force and effect, by implication, as if it expressly contained the provision, ‘Whenever the wrongful act would have entitled the person injured to maintain an action if death had not ensued.’ ”
How later courts described this case
- holding that under this Court’s statutory construction, “it has the same force and effect, by implication, as if it expressly contained the provision, ‘Whenever the wrongful act would have entitled the person injured to maintain an action if death had not ensued.’ ”
- overruling Haffner in part
Written by the judges who cited it.
The opinion
GIVENS, J.,
Concurring Specially. — I concur in the conclusion reached, but not in the portion of the opinion over
*690
ruling
Haffner v. United States F. & G. Co.,
35 Ida. 517 , 207 Pac. 715 , and
Federal Reserve Bank v. Smith,
42 Ida. 224 , 244 Pac. 1102 , because I think those cases are distinguishable from the situation herein and capable of being harmonized thus:
Haffner v. United States F. & G. Co., supra,
considered venue not liability, and while “virtue” and “color” are contrasted, no decisive holding was necessary or made therein as to liability, only as to a cause of action coming under section 5MD2, I. C. A., formerly section 6662, I. C. S., 1919.
In
Federal Reserve Bank v. Smith, swpra,
the court said:
“ ‘It is only such acts of a sheriff as are done under color of office, involving an abuse, as distinguished from a usurpation, of authority, that render his bondsmen liable,’ ” and here there was such abuse as to render the bondsmen liable and such holding, would not, it seems to me, be out of line with the holding in
Federal Reserve Bank v. Smith, supra.