Manwaring v. Geisler

• Citation: 230 S.W. 918,191 Ky. 532
• Parties: MANWARING v. GEISLER.
• Decision Date: 17 May 1921
• Court: Court of Appeals of Kentucky

230 S.W. 918

191 Ky. 532

MANWARING v. GEISLER.

Court of Appeals of Kentucky.

May 17, 1921

Appeal from Circuit Court, Campbell County.

Action by Madison Geisler, an infant, by, etc., against William R Manwaring. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.

Howard M. Benton, of Newport, for appellant.

Horace W. Root, of Newport, and B. F. Graziani, of Covington, for appellee.

SAMPSON J.

Appellant Manwaring, a motorcycle policeman of the city of Newport, was required by the city to perform certain duties in the fire department in addition to his duties as police officer. Before entering upon the discharge of his duties the officer was required to and did execute to the commonwealth and the city of Newport the following bond:

"Know all men by these presents that we, William R. Manwaring, as principal, and Massachusetts Bonding & Insurance Company, a corporation organized under the laws of Massachusetts, as surety, are held and firmly bound to the commonwealth of Kentucky, and the city of Newport, in the sum of one thousand ($1,000.00) dollars well and truly to be paid."

The condition of the foregoing bond is as follows:

"Whereas, William R. Manwaring has been engaged as a motorcycle policeman of the city of Newport, Kentucky, during the pleasure of the board of commissioners of said city:

Now, if the said William R. Manwaring shall well and truly perform the duties of said position and commit no trespasses against any person under the guise of said position for which he or the city may be held liable, then this bond shall be null and void, otherwise to remain in full force and effect.

In witness whereof, we have this first day of May, 1919, set our hands, William R. Manwaring, Massachusetts Bonding & Ins. Co., by Howard M. Benton, Attorney in Fact."

After the execution of the bond, and while it was in full force and effect, and at a time when the officer was in the discharge of his duties as a member of the fire department of the city, riding his motorcycle, he ran into and against the bicycle of the plaintiff and appellee, Geisler, causing him to be thrown to the ground and badly injured. This suit was brought by the injured boy against the officer and his surety, the Massachusetts Bonding Insurance Company, to recover damages for the alleged negligence of the officer. A verdict for $500 being returned and judgment entered thereon in favor of the plaintiff, the defendants Manwaring and his surety appeal, urging several grounds for the reversal of the judgment, which may be set out as follows: (1) There is no liability on the bond of the policeman for a trespass done by him while performing duties as a member of the fire department. (2) Public necessity exonerates a motorcycle policeman from liability for all but gross negligence. (3) The plaintiff, Geisler, was guilty of contributory negligence but for which the injury would not have happened. (4) The trial court grievously erred in instructing the jury on the law of "last clear chance," where only specified charges of negligence which do not cover the act of which complaint is made are contained in the petition. (5) The policeman's bond covered only his official acts, and is available to a citizen only when the officer has been guilty of misfeasance, malfeasance, or nonfeasance. (6) The surety on the official bond of a police officer is not liable for ordinary acts of negligence of the officer, for these are done in his individual capacity.

Appellant Manwaring was acting both as a police officer and fireman at the time of the accident to appellee, Geisler, and it is impossible to separate his duties one from the other. In such case the surety may be held liable. The injured party will not be required to draw fine distinctions and determine whether the officer was doing more duty as a policeman than as a fireman, or vice versa, if he was performing any duty as a police officer. Nor is a peace officer exonerated from liability for an injury inflicted on another while in the discharge of official duties on the ground of public necessity if the officer failed to exercise reasonable care for the protection of those whom he knew, or by the exercise of reasonable judgment should have expected, to be at the place of the injury, although he may not be criminally liable. For instance, an officer whose duty it is to make an arrest of one charged with felony may use such force and means as will prevent the escape of the prisoner, even to shooting and wounding him, but if in shooting at a fleeing prisoner a police officer should wound another on a public street where people are generally congregated and expected to be, the officer would not be exonerated from civil liability because he had a right to shoot to stop the prisoner, for it was his duty to so perform the functions of his office as not to injure another, and in shooting into a crowd or along a public thoroughfare where people were wont to travel in large numbers, he would be guilty of such failure to exercise reasonable care as would render him civilly liable for the wrong, even though he was justified in firing at the prisoner.

Coming now to the consideration of the alleged insufficiency of the pleading of plaintiff to have warranted the trial court in giving an instruction on the law of the last clear chance, it may be said...