
    United States Fidelity & Guaranty Co. v. Samuels.
    
      Suretyship — Misfeasance—Police officer’s failure to exercise care results in injuring another — Surely 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.
    (No. 20171
    Decided May 25, 1927.)
    Error to the Court of Appeals of Mahoning county.
    
      This action originated in the court of common pleas of Mahoning county. For convenience the parties will he 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 &. 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 Ñ. 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 án investigation on behalf of the police department óf said city of a reported crime, and that the car in which he was riding and which he was "driving at said time was a car belonging to the police department of the; city of Youngstown, and vised by the traffic department, and that the said Wollitz at said time was detailed as a motorcycle officer - operating under the traffic department of said city. ,
    “It is further stipulated and agreed between the parties hereto that the bond under which the plaintiff; Elias Samuels, now seeks to recover against the defendant the United States Fidelity & Guaranty Company, and which said bond was filed with the city of Youngstown, reads in full as follows:
    “ ‘Municipal Officers’ Bond.
    “‘Know-all men by these presents: That we Carl L. Wollitz, principal, and United States Fidelity & Guaranty Company, as sureties, are held and firmly bound' unto the city of Youngstown, in Mahoning county, and state of Ohio, in the sum of five hundred ($500.00) dollars, to be paid to the city aforesaid,- for the payment whereof well and truly to be made we jointly and severally bind ourselves, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals and signed by us this nineteenth day of July, A. D. 1920, the condition of the above obligation is such that, whereas the said Carl L. Wollitz has been duly appointed and qualified as motorcycle policeman of said city of Youngstown and state of Ohio, for the term of good behavior or until his successor is qualified:
    “ ‘Now, if the said Carl L. Wollitz shall faithfully perform the duties of the office of policeman of said city during his continuance in said office for said term, then this obligation be void, otherwise it will be and remain in full force and effect.’ ”
    A judgment was rendered in the court of common pleas in favor of the defendant, which was reversed by the Court of Appeals, and thereafter, upon motion, the case was ordered certified to this court.
    
      Messrs. Harrington, I)e Ford, Huxley & Smith, for plaintiff in error.
    
      Mr. H. H. Wickham, for defendant in error.
   Matthias, J.

The principal question presented is whether this bond covers the action of Wollitz which resulted in the injury complained of; it being contended by counsel for the surety company that the condition of the bond that Wollitz would “faithfully perform the duties of the office of policeman” had the effect only of a guaranty that he would not violate his oath to faithfully, honestly, and impartially discharge his duties as an officer, nor exceed the powers conferred upon him as such officer. It is not claimed that the injury to the plaintiff was not caused by Wollitz while the latter was in the discharge of his official duties; on the contrary, it is admitted that he was then acting in the course of his employment as a police officer; but it is contended that the negligence of Wollitz in the operation of the automobile of the city is not official misconduct, and no liability upon his. official bond arises in favor of one injured as a result of such negligence.

The authorities covering the subject of liability of sureties upon bonds of officials for acts done by virtue of or under color'of office were collected and reviewed in the case of American Guaranty Co. v. McNiece, 111 Ohio St., 532, 146 N. E., 77, 39 A. L. R., 1289, and it is there held:

“The sureties on a bond of an official, conditioned upon the faithful performance of his duties, are liable to all persons unlawfully injured by the nonfeasance, misfeasance, or malfeasance perpetrated by such officer, either by virtue of his office or under color of his office.”

At the time in question, Wollitz was in the pursuance of his official duties, and whatever he was doing was being done, not as an individual, but as an officer acting not only by virtue of, but under color of, his office. The mere fact that the injury caused by Wollitz resulted from his failure to exercise ordinary care, and that there is an obligation of ordinary care imposed upon every individual, does not serve to relieve the surety from liability, for he (Wollitz) was operating the automobile of the city in the actual discharge of his duties as a policeman, and was not acting as an individual when the wrongful act was done and the injury caused. Negligence is the basis of nearly every loss occasioned or injury done to a third person giving rise to a right of recovery upon such bond; the most frequent instance being that of want of care, in taking property of the wrong person upon execution, or in identifying a person placed under arrest.

Under the subject of “Neglect or Malfeasance of Official Duty,” it is stated in 29 Cyc., 1455, that “it goes without saying that sureties on official bonds are liable for negligence or malfeasance of their principal in the performance of acts which are done virtute officii. * * * The bond providing usually for the faithful discharge by the principal of his official duties, the condition of the bond is considered to have been broken by the mere negligence without corruption of the principal in the performance of a ministerial duty # * *.”

Misfeasance has been defined as “improper doing of an act which a person might lawfully do,” also as “a failure to use, in the performance of a duty owing to an individual, that degree of care, skill, and diligence which the circumstances of the case reasonably demanded,” and also as “the performance of an act in an improper manner whereby some one receives an injury.” Cases cited in 3 Words and Phrases, Second Seridfe, 409.

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

It does not follow that, because an action cannot be maintained' against the city for the act of an official representing the city in the discharge of a governmental duty, there can be no recovery by a third person against the surety on the bond of such official. If there be a violation of. the guaranty that the official will faithfully discharge his duties, there can be a recovery upon his bond by one injured by such failure, although there could be no recovery from the city. Maryland Casualty Co. v. McDiarmid, ante, 576, 157 N. E., 321.

We are in accord with the conclusion reached by the Supreme Court of Kentucky in the case of Fidelity & Casualty Co. of New York v. Boehnlein, 202 Ky., 601, 260 S. W., 353, where the identical question here presented was recently decided. It was there held that “a surety upon a policeman’s bond is liable for his negligence in operating a motorcycle, though the covenant is only that he ‘shall well and faithfully discharge’ his duties as a policeman, where the policeman in driving the motorcycle was doing precisely what his duties required him to do.”

It is further contended that the judgment upon which the suit against the surety is predicated, being against Wollitz as an individual and based upon charges of negligence as an individual, the plaintiff herein has waived all right to collect on the judgment against Wollitz’s official bond.

. While it did not appear in the pleadings in the former case that Wollitz was a city police officer and operating an automobile of the city in the course of his employment and in the discharge of his duties as such officer, those facts do appear in the agreed statement of facts in this case. The absence of averments in the petition that. Wollitz was a city policeman, and at the time in question was in the performance of his duties as such, would not operate as a waiver of the plaintiff’s right to maintain this action upon the official bond. We have not before us the record in the previous case, but, under the agreed statement of facts as shown by the record in this case, it must be assumed that it was found upon the trial that the injury of the plaintiff resulted from the acts of negligence charged, which included, not only driving at a reckless and unreasonable rate of speed with an automobile having defective brakes, but also driving on the wrong side of the highway. The defense that the driver was a police officer would have been of no avail in an action by one injured as a result of such reckless conduct.

Judgment affirmed.

Marshall, C. J., Day, Allen, Kinkade, Robinson and Jones, JJ., concur.  