U.S.F. & G. Co. v. Samuels

• Decision Date: 25 May 1927
• Docket Number: 20171
• Citation: 157 N.E. 325,116 Ohio St. 586
• Parties: United States Fidelity & Guaranty Co. v. Samuels.
• Court: Ohio Supreme Court

157 N.E. 325

116 Ohio St. 586

United States Fidelity & Guaranty Co. v. Samuels.

No. 20171

Supreme Court of Ohio

May 25, 1927

Suretyship - Misfeasance - Police officer's failure to exercise care results in injuring another - Surety liable for negligent operation of motorcycle by officer.

1. Where in the discharge of official duty a police officer fails to take that precaution or exercise that care which due regard for others requires, resulting in injury, his conduct constitutes misfeasance.

2. A surety on the bond of a motorcycle police officer, with a condition that he "shall faithfully perform the duties of the office of policeman of said city," is liable for the negligent operation of a motor vehicle by such officer in the performance of his official duties.

This action originated in the court of common pleas of Mahoning county. For convenience the parties will be referred to as plaintiff and defendant, as they there appeared. The petition alleges that at the time stated one Carl L. Wollitz was a police officer of the city of. Youngstown, and while in the performance of his duty as such police officer he wrongfully recklessly, and negligently performed the duties of such office to plaintiff's damage; that thereafter, in the court of common pleas of Mahoning county, plaintiff recovered a judgment in the sum of $800 and costs of suit, against said Carl L. Wollitz; that an execution issued thereon was returned indorsed, "No goods and chattels found," and that no part of said judgment has ever been paid and the whole thereof is due; that the United States Fidelity &amp Guaranty Company was surety upon a certain bond theretofore given by said Carl L. Wollitz as principal, whereby said principal and surety became bound in the sum of $500 for the faithful performance by Carl L. Wollitz of the duties of his office, a copy whereof is attached; and that, by reason of the obligation in said bond, and the judgment aforesaid, the United States Fidelity & Guaranty Company became bound to pay this plaintiff said sum of $500.

The answer of the defendant admits the averments of the petition relative to the services of Carl L. Wollitz as a police officer, and the recovery of a judgment against him by plaintiff, and that defendant was surety upon the bond of Carl L. Wollitz in the sum named for the faithful performance of his duties as a police officer of the city of Youngstown; but defendant denies that said action was brought and said judgment rendered against Carl L. Wollitz as a police officer of the city of Youngstown, but avers that they were against Carl L. Wollitz as an individual.

The case was submitted to the trial court upon an agreed statement of facts, a jury having been expressly waived by the parties. Said agreed statement of facts is as follows:

"The plaintiff, Elias Samuels, filed his petition in the court of common pleas of Mahoning county, Ohio, against one Carl L Wollitz and Myron N. Graham on November 17, 1921, the same being cause No. 47080; the petition in that case being as follows:

"`Plaintiff for his cause of action against the defendants, says that he is the owner of a certain automobile known as a Lexington sedan, and that on the 26th day of October, 1921, at about 6:30 p.m., said automobile was being driven in a northerly direction on Market street, a duly dedicated thoroughfare in the city of Youngstown, Ohio, at or about the intersection of said highway with Cleveland street in said city, and that the defendants were traveling in a southerly direction upon Market street at said time and place in a Stearns automobile and that, as the said defendants approached said intersection, they were driving said automobile at a high, reckless, and unreasonable rate of speed, to wit, 40 miles per hour; that as they passed said intersection they applied the brakes to said automobile and caused the same to swerve from the westerly side of said Market street to the easterly side thereof, striking plaintiff's car at the right front corner of the same and damaging it in the following particulars: Damaging the radiator. fenders, wheels, front axle, frame, right running board, throwing the engine out of alignment, bending the crank shaft, all to the damage of this plaintiff in the sum of $1,000. Plaintiff further says that he was deprived of the use of said automobile for a period of fourteen days, and that at the time that said injury was sustained he was using said automobile in his business as a jitney operator, and that the reasonable value of said use for the said fourteen days was $300. Plaintiff says that all of said injuries were the direct and proximate result of the defendants' negligence in the following particulars:

"`First. In operating said automobile so being driven by them at a high, reckless, and unreasonable rate of speed, to wit, 40 miles per hour.

"`Second. In turning to the left-hand side of said highway contrary to the rules of the road of the state of Ohio.

"`Third. In failing to have said car under control.

"`Fourth. In operating said car with the brakes in a defective condition.

"`Wherefore, plaintiff asks judgment against the defendants in the amount of $1,300, and for his costs of suit.'

"That thereafter on the 5th day of January, such proceedings were had that the defendant Myron N. Graham was dismissed as a party defendant in said cause, and that on March 13, 1923, such further proceedings were had that judgment after verdict was had against the defendant Carl L. Wollitz in the sum of $800, together with his costs in the amount of $33.40; that said judgment is still due and unpaid.

"It is further stipulated and agreed that, at the time set forth in plaintiff's petition in the case of Elias Samuels against Carl L. Wollitz, to wit, the 26th day of October 1921, the then defendant, Carl L. Wollitz, was acting in the course of his employment as a police officer of the city of Youngstown, Ohio, and actually at said time on his way to make an investigation on behalf of the police department of said city of a reported crime, and...