Fidelity & Casualty Co. of New York v. Boehnlein

• Decision Date: 28 March 1924
• Citation: 260 S.W. 353,202 Ky. 601
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. BOEHNLEIN.
• Court: Kentucky Court of Appeals

260 S.W. 353

202 Ky. 601

FIDELITY & CASUALTY CO. OF NEW YORK v. BOEHNLEIN.

Court of Appeals of Kentucky.

March 28, 1924

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Andrew J. Boehnlein against the Fidelity & Casualty Company of New York and another. From the judgment against it, the named defendant appeals. Affirmed.

Thomas J., dissenting.

Fred Forcht, of Louisville, for appellant.

Beckham Overstreet, Geo. C. Burton, and D. O. Myatt, all of Louisville, for appellee.

CLARKE J.

Appellant became surety upon the official bond of Robert Hamilton for $1,000 as a policeman in the city of Louisville. Hamilton while patrolling his beat on a motorcycle furnished him for the purpose by the city, negligently ran same against and into appellee, who recovered in this action for his injuries a judgment against Hamilton for $1,240, and against appellant for $1,000. Upon this appeal, appellant complains of the judgment against it upon the ground that the bond executed by it does not cover such liability, and that the court erred in refusing its motion for a directed verdict.

Section 2894, Kentucky Statutes, provides that "each officer and member of the police force, private policeman, special policeman and substitute policeman, before entering upon the discharge of his duties," shall take an oath to "well and faithfully discharge the duties of his office" and execute bond with approved sureties. The bond executed in accordance therewith by Hamilton, with appellant as his surety, reads:

"Whereas, Robert M. Hamilton has been duly appointed to the office of policeman in and for the city of Louisville, now we, Robert M. Hamilton, principal, and the Fidelity & Casualty Company of New York, N. Y., sureties, hereby covenant to and with the commonwealth of Kentucky, in the sum of one thousand dollars, lawful money of the United States, that the said Robert M. Hamilton shall well and faithfully discharge the duties of his said office of policeman according to law.

Witness our signatures this 10th day of Jany. 1921."

Appellant's first contention is that, since the bond only covers Hamilton's duties as a policeman, it does not by its terms cover anything he did as a motorcycle policeman, and that, in the absence of allegation and proof that appellant knew at the time the bond was executed, or before the accident, that Hamilton was a motorcycle policeman, it cannot be held liable for his acts as such. This contention is wholly without merit. Under sections 2873, 2879, and 2885 of Kentucky Statutes, in force when the bond was executed, the board of public safety has plenary power in assigning a policeman for duty to any department of the police service and he is still a policeman, whether serving as a traffic officer, walking or riding a beat, or performing any of the many duties a policeman can be required as such to do. Appellant executed the bond with full knowledge of these facts, and to hold that for every change in a policeman's duties his bondsmen were released or not bound unless notified of the change would render the execution of such bonds a farce. Besides, it is expressly provided by section 3752 of the Kentucky Statutes that a recovery on any official bond shall not "be restricted only to such duties or responsibilities as belong to the office, ...