192 Ky. 758 | Ky. Ct. App. | 1921
Opinion of the Court by
— Reversing.
“Know all men by these presents, that Michael Scheben, as principal, and Fidelity & Deposit Co. 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 gum of $1,000.00, well and truly to be paid.”
“Whereas Michael Scheben has been engaged as a policeman of the city of Newport, Kentucky, 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 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 the 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. Statutes, 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 as may be prescribed by ordinance, . . . for the faithful discharge of his duties.” Section 3168, Ky. Stats., also, a part of the charter of cities of the second class, provides that policemen “shall execute such bond, with such surety as may be required by ordinance; to the city, conditioned that they will faith
“The obligation required by law for the discharge or performance of any public or fiducial office, trust or employment, shall be a covenant to the Commonwealth of Kentucky from the person and his sureties, that the principal shall faithfully discharge the duties of the office, trust or employment, but, a bond or obligation taken in any other form, shall be binding on the parties thereto according to its terms.” This court held the instant bond to be binding upon the parties according to its terms, in Manwaring v. Geisler, 191 Ky. 532, although, in that case, the question of the validity of the bond was not in controversy. The instant bond was voluntarily executed, the consideration was the appointment to the office, and the unprescribed condition is not contrary to any law.
(b) The second ground upon which the demurrer is insisted upon is based upon the provisions of section 3139, Ky. Stats., which provide generally that the commissioners shall especially require the policemen to perform all duties required by law or by ordinance. The provisions of this statute, taken in connection with others relating to the control of the policemen, does not mean, that it was necessary, in order to assign to Scheben the duty of driving the police ambulance that an ordinance to that
(c) Touching the third ground of the demurrer, it need only be said that the petition as amended avers, that Scheben had been assigned'to the duty of driving the ambulance, when he executed the bond, and that the surety had knowledge that such was his office and duties, when it became bound upon the bond. There was no change in the duties of Scheben, after the execution of the bond. Besides^ the surety must have known, that the bond was executed to insure the performance of any of the duties of a policeman to which he might be assigned.
The judgment is, therefore, reversed, with directions to the trial court to overrule the demurrer, and for other proper proceedings not' inconsistent with this opinion.