Connelly v. American Bonding & Trust Co.

• Decision Date: 10 October 1902
• Citation: 113 Ky. 903,69 S.W. 959
• Parties: CONNELLY v. AMERICAN BONDING & TRUST CO.
• Court: Kentucky Court of Appeals

69 S.W. 959

113 Ky. 903

CONNELLY v. AMERICAN BONDING & TRUST CO.

Court of Appeals of Kentucky.

October 10, 1902

Appeal from circuit court, Campbell county.

"To be officially reported."

Action by Robert Connelly against the American Bonding & Trust Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Lucius Desha and H. H. Deputy, for appellant.

C.J. &amp W. W. Helm, for appellee.

O'REAR J.

Appellant brought this suit against John T. Stapleton, a policeman of the city of Newport, and his surety, the American Bonding &amp Trust Company of Baltimore City, Md. The action is upon a bond executed by the policeman, which was as follows: "Whereas, pursuant to the charter for cities of the second class, entitled 'An act for the government of cities of the second class in the commonwealth of Kentucky,' approved March 19th, 1894, John Stapleton was, on the 3d day of May, 1901, duly appointed to fill the position and office of member of the police department of the city of Newport, Ky. for the term ending 3d day of May, 1902, unless sooner removed by the police and fire commissioners of said city: Now, therefore, we, the said John Stapleton and the American Bonding and Trust Company of Baltimore City, his sureties, do hereby bind ourselves unto the said city of Newport, Kentucky, in the sum of one thousand ($1,000) dollars, lawful money of the United States, for payment of which we bind ourselves, our heirs, executors, administrators, and assigns, that the said John Stapleton shall well and truly perform each and all the duties of said office of member of the police department of the city of Newport as are now and may from time to time be required of him by law. And we further covenant that we will pay any and all loss the said city may sustain by reason of any breach of this bond, not, however, exceeding the sum of one thousand ($1,000) dollars. In witness whereof we have this 4th day of May, 1901, set our hands and seals hereto." The breach is alleged to be this: That the principal, Stapleton, and another police officer of Newport, on the 9th day of June, 1901, while acting as such policemen in said city, "without warrant, judicial order, or other authority of law, and against plaintiff's will, wrongfully and forcibly arrested the plaintiff, and deprived him of his liberty, to his great humiliation, disgrace, and bodily and mental pain and injury, to his damage in the sum of $500"; also, that the said officers, "without warrant, judicial order, or other authority of law, wrongfully, cruelly, and severely assaulted, beat, and bruised plaintiff, and thereby caused plaintiff to suffer great physical and mental pain and anguish, to plaintiff's damage in the sum of $500"; also, that said officers, "without warrant, judicial order, or other authority of law, wrongfully and forcibly compelled plaintiff to go with them through the public street of said city to the police office of said city, and thence conveyed plaintiff to be unlawfully confined in said jail from the hours of 12 o'clock midnight until 9 o'clock next morning, to plaintiff's great humiliation, disgrace," etc. The bond above quoted was executed under section 3141, Ky. St., as follows: "Each member of the police force, before entering upon the discharge of his duties, shall take an oath before the mayor to well and truly discharge the duties of his office, which oath shall be subscribed by the person taking it, and shall be preserved on file in the office of the auditor. Each policeman shall give such bond as may be prescribed by ordinance, with securities satisfactory to the police and fire commissioners, for the faithful discharge of his duties. No person convicted of felony shall be eligible as a policeman." Under this authority, the city of Newport passed the following ordinance, approved May 17, 1894, to wit:

"Be it ordained by the general council of the city of Newport Ky.

"Section 1. That each member of the police force of Newport, Ky. shall before beginning the discharge of his duty as such, give bond for the faithful discharge of his duties to the city of Newport, in the sum of one thousand dollars with good and approved sureties, satisfactory to the police and fire commissioners. Said bonds shall be taken by the police and fir commissioners of the city and all bonds shall be preserved as an official record.

"Sec. 2. This ordinance shall take effect and be in force from and after its passage and approval."

It is thought that this bond does not indemnify any person other than the city of Newport, because the undertaking is to the said city alone. We are, however, of the opinion that the bond is controlled by the following sections of Kentucky Statutes, and must be read in connection therewith, and that under the provisions of these sections the informality of not naming the commonwealth of Kentucky as the obligee of the bond will not prevent a recovery thereon by the person aggrieved. Said sections are as follows:

"Sec. 3751. The obligation required by law for the discharge or performance of any public or fiducial office, trust or employment, shall be a covenant to the commonwealth of Kentucky, from the person and his sureties that the principal shall faithfully discharge the duties of the office, trust or employment; but a bond or obligation taken in any other form shall be binding on the parties thereto according to its terms.

"Sec. 3752. Actions may be brought from time to time on any such

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