Kosowsky v. Fid. & Deposit Co. of Md.

Decision Date04 December 1928
Docket NumberNo. 31.,31.
Citation222 N.W. 153,245 Mich. 266
PartiesKOSOWSKY v. FIDELITY & DEPOSIT CO. OF MARYLAND.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Error to Circuit Court, Dickinson County; Frank A. Bell, Judge.

Action by Anton Kosowsky against the Fidelity & Deposit Company of Maryland. Judgment for defendant, and plaintiff brings error. Judgment set aside, and case remanded, with direction.

Argued before the Entire Bench.

Derham & Derham, of Iron Mountain, for appellant.

Symonds & Rahm, of Iron Mountain, for appellee.

WIEST, J.

This is a suit against the surety on the official bond of Frank Cleveland, sheriff of Dickinson county, in 1926, to recover damages for assault and battery and false imprisonment. The condition of the bond omitted some statutory language, but contained the essential requirement that the sheriff should ‘well and faithfully perform all and singular the duties incumbent upon him * * * as said sheriff.’ While the terms of the official bond are prescribed by C. L. 1915, § 2442, the statute is directory, and substantial compliance therewith binds the surety. The bond was the statutory one. Mechem, Public Officers, § 268.

May 20, 1926, plaintiff, at the city of Iron Mountain, was convalescing from an operation for a double hernia, and, having been advised by his physician to take moderate exercise, went out of his boarding house to the street steps and, suffering pain, sat down. Just then the sheriff came along and said, ‘I am sheriff of Iron Mountain, Dickinson county, and I clean up the place,’ grabbed hold of plaintiff, jerked him from the steps, pounded him on the head, struck him in the ribs, led him to an automobile a short distance away, pushed him in, took him to the county jail, there locked him up, refused him leave to call his physician or attorney, kept him in jail until afternoon of the next day, and then took him before a justice of the peace, laid no charge against him, and plaintiff was released. A few days later the sheriff left for parts unknown. The sheriff had no warrant, and plaintiff had committed no offense. In the circuit court a jury awarded plaintiff $1,000 damages, and the circuit judge, notwithstanding the verdict, entered judgment for defendant, holding the surety not liable for the ‘unprovoked, unwarranted, unofficial, personal acts of the sheriff, committed, if we may apply normal assumptions to his conduct, for there is no evidence on the subject, to satisfy a personal grudge.’ Plaintiff negatived ill will.

The court was in error in holding the acts complained of were not committed, in the eye of the law, by virtue of or under color of office. The holding finds support in some jurisdictions, is sharply criticized and wholly rejected in others, and is opposed to the weight of modern authority. The opinion in Norris v. Mersereau, 74 Mich. 687, 42 N. W. 153, committed this court to the modern rule of liability of the surety, and we affirmed the rule in Bostatter v. Hinchman, 243 Mich. 589, 220 N. W. 775, decided since the case at bar was heard in the circuit. The rule in this jurisdiction holds the surety liable to all persons unlawfully...

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7 cases
  • Ingo v. Koch
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 15, 1942
    ...a motive existed. This, I think, is the New York law and is the law of nearly all other jurisdictions. Kosowsky v. Fidelity & Deposit Co. of Maryland, 1928, 245 Mich. 266, 222 N.W. 153; Stark Hickey, Inc., v. Standard Acc. Ins. Co., 291 Mich. 350, 289 N.W. 172; Clancy v. Kenworthy, 74 Iowa ......
  • State ex rel. Kaercher v. Roth, 30050.
    • United States
    • Missouri Supreme Court
    • April 8, 1932
    ...309; American Guaranty Co. v. McNiece, 111 Ohio St. 532, 146 N.E. 77; Lynch v. Burgess, 273 Pac. (Wyo.) 693; Kosowsky v. Fidelity & Deposit Co., etc., 245 Mich. 266, 222 N.W. 153; Drolesbaugh v. Hill, 64 Ohio St. 257, 60 N.E. 202; Yount v. Carney, 91 Iowa, 559, 60 N.W. 116; Hall v. Tierney,......
  • Jemison v. Crichlow
    • United States
    • New York Supreme Court — Appellate Division
    • July 18, 1988
    ...a motive existed. This, I think, is the New York law and is the law of nearly all other jurisdictions. Kosowsky v. Fidelity & Deposit Co. of Maryland, 1928, 245 Mich. 266, 222 N.W. 153; Stark Hickey, Inc., v. Standard Acc. Ins. Co., 291 Mich. 350, 289 N.W. 172; Clancy v. Kenworthy, 74 Iowa ......
  • Maryland Casualty Co. v. Alford
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 22, 1940
    ...174, 80 N. E. 100, 8 L.R.A.,N.S., 1223, 116 Am. St.Rep. 127; State v. Walford, 11 Ind.App. 392, 39 N.E. 162; Kosowsky v. Fidelity & Deposit Co., 245 Mich. 266, 222 N.W. 153; People v. Mersereau, 74 Mich. 687, 42 N.W. 153, Hall v. Tierney, 89 Minn. 407, 95 N.W. 219, 220; Lee v. Charmley, 20 ......
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