Fidelity & Casualty Co. of N.Y. v. White

• Decision Date: 05 June 1925
• Citation: 209 Ky. 402
• Parties: Fidelity & Casualty Company of New York, et al. v. White.
• Court: United States State Supreme Court — District of Kentucky

209 Ky. 402

Fidelity & Casualty Company of New York, et al. v. White.

Court of Appeals of Kentucky. Common Pleas Branch, Second Division.

Decided June 5, 1925.

Municipal Corporations — Sureties on Police Officers' Bonds Held Not Liable for Arrest. — Where police officers arrested plaintiff without a warrant and without a public offense having been committed in their presence by plaintiff, and, though acting in good faith, facts which they should have known and discovered showed that no arrest was justified, held that the sureties on their official bonds are not liable.

Appeal from Jefferson Circuit Court

FRED FORCHT and R.P. DIETZMAN for appellants.

BLAKEY, DAVIS & LEWIS for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

This is an appeal from a judgment rendered on the verdict of a jury under peremptory instructions of the court, awarding appellee damages of $1,200.00 against E.W. Sweeney, $1,000.00 against the Fidelity & Casualty Company of New York, surety on the bond of Sweeney, $650.00 against A.W. Barmore and the Fidelity & Casaulty Company of New York, as surety on the bond of said Barmore, and $650.00 against John Bourke, Jr., and the Fidelity & Casualty Company of New York, as surety on the bond of said Bourke.

E.W. Sweeney was a captain of police on the force of the Louisville police department; A.W. Barmore and John Bourke, Jr., were patrolmen on the police force of the city of Louisville, but were on duty in citizen's clothes at the time of the occurrences hereinafter set forth, and were stationed in the district of which Sweeney was in charge as captain, and were under Sweeney's orders, he being their superior officer.

This is an action for false arrest brought by W.P. White against E.W. Sweeney, A.W. Barmore and John Bourke, Jr., members of the Louisville police department, and the Fidelity & Casualty Company of New York, which company was the surety on all of the bonds of said police officers, arising out of an arrest made in Louisville on or about March 23, 1922. Appellee, W.P. White, was a student at the University of Kentucky and had found it necessary to earn money to complete his interrupted college work. During the winter of 1921 appellee had been working in Texas, and while there learned of a so-called glare shield which was attached to the windshield of an automobile to save the driver from the effect of bright lights from other cars. Together with Mr. K. Ware, who subsequently became his partner in the Kentucky venture, appellee undertook to sell these devices in Corsicana, Texas, and after a successful experience there which demonstrated to him both the usefulness and the salability of the article, the two men bought the Kentucky rights for it, paying $250.00 therefor. The written contract which was introduced at the trial evidenced this agreement. The men immediately came to Kentucky and inserted in the Louisville Times the following advertisement:

"We are placing men in position to make $300.00 and up per month. Exclusive distributors for an article universally endorsed and without competition. Sales experience unnecessary. See it and be convinced. Small deposit required. Mr. Ware or Mr. White, room 408 Seelbach Hotel."

This advertisement was a copy of one which had been used by the parent concern in Texas, and to appellee seemed both truthful and harmless. It was noticed by one W.P. Lee, a police reporter for the Louisville Times who, actuated as he admits chiefly by the desire to get a story, answered the advertisement representing himself to be a man from Lebanon, Kentucky, who had recently sold out his automobile garage and had some money to invest. Appellee and Ware believed Lee, who introduced himself as Joseph M. Thompson, to be a genuine prospect, and proceeded to negotiate a contract with Lee by which the latter was to pay $600.00 for the rights in Jefferson county, this amount to represent an advance payment of fifty cents each on 1,200 of the shields. Lee had sent a wire to the Universal Glare Glass Company asking about appellee and Ware. The telegraph company was unable to find such a concern and so reported to Lee. In the meantime he had advised the city police department that he thought these men were engaged in a "get rich quick" scheme. The name of the company was the Universal Glare Shield Company, not the Universal Glare Glass Company, and the documentary evidence in the case certainly indicates that appellee gave the correct name for the concern. Lee was careless and utterly callous in his attitude toward the men after he had procured their arrest and had secured a double column head for the story which he wrote on the subject. As he testified with cynical candor, once the men were headed for the jail, he paid no further attention to them.

The first interview between Lee and appellee appears to have been on March 22, 1922. On that evening Lee sent his telegram. When he received word that the Universal Glare Glass Company could not be located he concluded that he had a good story, and proceeded to set the trap with the assistance of the police department. Appellant Sweeney telegraphed to the chief of police of Dallas, asking about the Universal Glare Glass Company. He received a reply that this company was not listed in any directories in the city. On the afternoon of March 23, Lee returned to the hotel, completed the negotiations for the trade, let White write up the contract, and was in the act of passing his fictitious checks in payment therefor when the three appellants, headed by captain Sweeney, entered the room and demanded that Ware and White come to the police station with them. There is a sharp variance in the testimony between the two sides as to what took place in the room. Appellee stated that he offered to show the police all of his papers, and this is corroborated by Ware. Appellant Sweeney claimed that only some typewritten paper was shown him, but he was unable at the trial to tell what was on this paper. Appellant Barmore saw some typewritten paper, but did not even look at it. Appellant Bourke saw some papers lying on the table as they entered, but according to him nobody looked at them. At the trial a printed advertising circular, a printed contract and certain typewritten contracts were exhibited to the jury, which appellee testified were shown, or at least offered to the officers at the...