Sauer v. Fidelity & Deposit Co. of Maryland

• Citation: 192 Ky. 758,234 S.W. 434
• Parties: SAUER v. FIDELITY & DEPOSIT CO. OF MARYLAND.
• Decision Date: 15 November 1921
• Court: Kentucky Court of Appeals

234 S.W. 434

192 Ky. 758

SAUER v. FIDELITY & DEPOSIT CO. OF MARYLAND.

Court of Appeals of Kentucky.

November 15, 1921

Appeal from Circuit Court, Campbell County.

Action by J. W. Sauer against the Fidelity & Deposit Company of Maryland and another. Upon judgment for the named defendant plaintiff appeals. Reversed.

Horace W. Root, of Newport, for appellant.

L. J Crawford, of Newport, for appellee.

HURT C.J.

The appellant, who was the plaintiff below, averred by his petition, as amended, that the appellee, who was the defendant below, was a corporation, and among its powers had authority to become a surety on official and other bonds, and in pursuance of such power became and was the surety of its codefendant, Michael Scheben in his official bond as a policeman of the city of Newport. Scheben was a duly qualified and acting policeman of Newport, and among other things it was a duty of his office to drive the motor patrol or ambulance over the streets of the city, for the purpose of conveying prisoners to the jail and from the jail to the courtroom, and conveying the injured and sick from the streets, highways, and buildings of the city to their homes the hospitals, and jails, as necessity might require, and while engaged in conveying an injured person, suddenly taken sick and found upon the street, to the home of such person, in the ambulance he negligently and carelessly ran the ambulance against the automobile of appellant, who was operating same upon the street, and damaged it in the sum of $550. The appellant further alleged that there was an ordinance of the city entitled, "An ordinance fixing the amount of the bond to be given by members of the police force of the city," and which provided that each member of the police force should, before beginning the discharge of his duties as such, give bond for the faithful performance of his duties to the city of Newport, in the sum of $1,000, with good and proved sureties, and that in pursuance of such ordinance Scheben executed the bond with the appellee as surety; that Scheben, at the time of the execution of the bond, had been duly assigned by the city to the duty of driving the ambulance for the purposes aforesaid; and that the appellee became surety in the bond with knowledge of the duties of the office of Scheben, and that it was after the execution of the bond, and while it was in full force and effect, that the alleged negligent acts were done. A copy of the bond, which was duly approved and accepted by the proper authorities of the city, was filed with the petition as amended, and is in words and figures as follows:

"Know all men by these presents that Michael Scheben, as principal, and Fidelity & Deposit Company of Maryland, a corporation organized under the laws of Maryland, as surety, are held and firmly bound to the commonwealth of Kentucky, and the city of Newport, in the sum of $1,000, well and truly to be paid."

The condition of the foregoing bond is as follows:

"Whereas, Michael Scheben has been engaged as a policeman of the city of Newport, Ky. during the pleasure of the board of commissioners of said city: Now, if the said Michael Scheben 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, remain in full force and effect. * * *"

The defendant Michael Scheben, and also the appellee, offered general demurrers to the petition as amended. The demurrer of Scheben was overruled, but the demurrer of the appellee was sustained, and the appellant and plaintiff declining to plead further, the petition as amended was dismissed as against the appellee, and the appellant has appealed.

The circuit court was of the opinion that the petition as amended did not state sufficient facts to constitute a cause of action against the appellee, as a surety upon the bond. The grounds upon which it is insisted that the petition as amended is insufficient are:

(1) The bond being a statutory one, the terms and conditions of which are prescribed by statute, and it containing a condition which is not authorized by the statute, it is void, or at least the unauthorized condition is a nullity, and, if it is eliminated, the remaining conditions of the bond are not such as to create a liability of the surety for the act complained of.

(2) The petition fails to state that there was any ordinance of the city which made it a duty of the office of the policeman, Scheben, to drive the ambulance.

(3) The surety was only obligated for the faithful discharge by the principal of the ordinary duties of a policeman, and not for such uncommon duties as driving an ambulance.

These grounds will be considered in their order.

(a) Section 3141, Ky. Stats., which is a part of the charter of cities of the second class, to which class the city of Newport belongs, provides that--

"Each policeman shall give such bond...