United States Fidelity & Guaranty Co. v. Jasper
| Decision Date | 29 May 1909 |
| Citation | 120 S.W. 1145 |
| Court | Texas Court of Appeals |
| Parties | UNITED STATES FIDELITY & GUARANTY CO. v. JASPER et al. |
Action by W. S. Jasper against the United States Fidelity & Guaranty Company and another. There was a judgment for plaintiff, and the company brings error. Judgment as to defendant named reversed, and cause remanded.
Hunt, Meyer & Townes, for plaintiff in error. McCart, Bowlin & McCart, for defendant in error.
This suit was instituted in the district court by defendant in error W. S. Jasper against Tom Haynie and plaintiff in error, the United States Fidelity & Guaranty Company, surety on the official bond of said Haynie as a policeman of the city of Ft. Worth in the sum of $500, to recover $2,500 actual and $2,500 exemplary damages for an alleged malicious and unlawful assault and battery by Tom Haynie upon W. S. Jasper on the 7th day of February, 1908. On May 22, 1908, judgment by default was rendered against said Tom Haynie and plaintiff in error for the sum of $500; the judgment reciting that said defendants had been duly cited, and that they had failed to appear and answer.
Plaintiff in error within due time sued out the present writ of error, and, among other things, contends that the judgment was unauthorized, in that the petition upon which it is predicated contained no allegation of an ordinance or law of the city of Ft. Worth authorizing suits by individuals upon such bonds as the one sued upon. We are of opinion that the contention must be sustained. The obligation of the surety cannot be extended beyond the terms of his bond nor to those not parties thereto. While the judgment imports the truth of every material allegation of fact made in the petition, inferences cannot be indulged beyond this. The policeman Haynie must therefore be held liable to defendant in error for the unlawful assault exhibited by the pleading upon which the judgment rests, but plaintiff in error, as appears from the petition, not being a party to such assault and the bond given by plaintiff in error to secure the faithful and impartial discharge of Haynie's duties as a policeman having been made to the city of Ft. Worth, is not liable to defendant in error in the absence of averment that the bond was executed for the benefit of persons not parties thereto, and in the absence of an ordinance of the city authorizing suits upon such official bonds by persons injured by the unlawful acts of its policemen. See Cushing v. Lickert, 79 Neb. 384, 112 N. W. 616; Alexander v....
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