Cushing v. Lickert

• Decision Date: 22 June 1907
• Docket Number: 14,777
• Parties: EDWARD CUSHING, APPELLANT, v. OTTO LICKERT ET AL., APPELLEES
• Court: Nebraska Supreme Court

112 N.W. 616

79 Neb. 384

EDWARD CUSHING, APPELLANT, v. OTTO LICKERT ET AL., APPELLEES

No. 14,777

Supreme Court of Nebraska

June 22, 1907

APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Affirmed.

AFFIRMED.

T. W Blackburn, for appellant.

C. L Dundy, E. M. Martin and E. M. Bartlett, contra.

EPPERSON, C. DUFFIE and GOOD, CC., concur.

OPINION

EPPERSON, C.

Plaintiff sued two patrolmen of the city of Omaha and the surety on their bonds to recover damages for the unlawful shooting, arresting and imprisoning of the plaintiff in August, 1903. A demurrer ore tenus to the petition by the surety company was sustained and the case dismissed as to that defendant. Plaintiff appeals.

The bond, which is set forth in the petition, provides that each patrolman shall faithfully and impartially perform all his duties, and shall deliver over to the city all property in his possession belonging to the city, and shall hold the city harmless from any loss or liability from his appointment. Plaintiff contends that he is entitled to sue upon the bond, for damages sustained by him at the hands of the patrolman, under the provisions of section 643 of the code. We cannot adopt this view. The section cited is as follows: "When an officer, executor, or administrator within this state, by misconduct or neglect of duty, forfeits his bond or renders his sureties liable, any person injured thereby, or who is by law entitled to the benefit of the security may bring an action thereon, in his own name, against the officer, executor, or administrator, and his sureties, to recover the amount to which he may be entitled by reason of the delinquency." The official bonds there referred to are the bonds required by and given under the provisions of the statute. Our legislature, prior to 1905, had not provided that patrolmen in cities shall give bonds for the faithful discharge of their duties. The bond in question was presumably required by city ordinance. The city is named as the obligee. The bond itself does not give individuals the right to sue for damages sustained at the hands of the patrolmen, nor is it shown that the ordinance was intended to give such protection.

This court has frequently held that one not a party to a bond may maintain an action thereon, but only when such bond was given for his benefit. Barker v. Wheeler, 71 Neb. 740, and cases there cited. But, in the absence of a contract made for his...