
    JOINDER IN AN ACTION FOR INJURIES AGAINST A POLICEMAN AND HIS SURETY.
    Common Pleas Court of Montgomery County.
    Dorothy Solomon et al v. Herbert A. Allaback et al.
    Decided December 31, 1925.
    
      Suretyship — Policeman and His Surety Improperly Joined in Action for Injuries — Surety Not Liable for Negligence of the Prin- . cipal, When.
    
    Where a charge based upon negligence is made against the principal and surety on a bond conditioned that the principal would “honestly, faithfully, and impartially discharge the duties” of police officer; and the first cause of action asks for $5,000.00 against both principal and surety, and the second cause of action asks for $600.00 against the surety only. Held—
    1. That the surety is not thereby made liable for the negligence of the principal.
    2. That the separate causes of action against the several defendants are improperly joined; for the reason that the causes of action so united do not affect all the parties to the action as required by Section 11307, G. C.
    
      I. L. Jackobson, for plaintiff.
    
      Frank W. Hoivett, for the Metropolitan Casualty Insurance Company.
   McCray, J.

The petition contains two causes of action the first of which alleges that on September 22, 1925, Herbert A. Allaback, through his negligence, caused personal injuries to the plaintiff, while he was acting as a police officer of the city of Dayton in pursuing violators of the speed law. He is charged with negligence in operating a motorcycle at the rate of fifty miles per hour on Wayne avenue in Dayton while the street was crowded with vehicles and pedestrians, and, further, that he failed and neglected to sound any warning of his approach and did not keep his motorcycle under any control. She claims $5,000 damages.

The second cause of action sets forth the appointment of Herbert A. Allaback as a police officer; and that he entered upon his duties as such giving bond in the sum of $600 in which The Metropolitan Casualty Insurance Company bound itself “that if the said Herbert A. Allaback would honestly, faithfully and impartially discharge the duties of his office, then the obligation was to be void; otherwise it was to remain in full force and effect.”

The plaintiff alleges that the condition of the bond has been broken and defendants have become liable thereon. In the prayer of the petition the plaintiff prays judgment against Herbert A. Allaback for $5,000 and costs and “further prays judgment against The Metropolitan Casualty Insurance Company in the sum of six hundred ($600) dollars and costs.”

There is a general demurrer before us, filed by The Metropolitan Casualty Insurance Company, in which it is urged: (1) There is a misjoinder of parties defendant; (2) Several causes of action are improperly joined; (3) Separate causes of action are improperly joined; and (4) The petition does not state facts which show a cause of action against this defendant.

This defendant company is a surety on the police officer’s bond. By the terms of this bond the surety stipulates that the duties of Herbert A. Allaback will be honestly, faithfully, and impartially discharged. A guarantor or surety may stand upon the very terms of his understanding; and this doctrine is sustained by an unbroken current of authority. Cambria Iron Company v. Keynes, 56 O. S., 501 at 511; Smith v. Huesman, 30 O. S., 662. There can be no enlargement of the meaning of the express words which have been used in this contract.

The purposes for which bonds are required to be given by police officers are fully set forth in the language of our Supreme Court in passing upon a bond given by such an officer. In that case the officer was a city marshal, but we do not find any distinction in their respective duties. The court say in Drolesbaugh v. Hill, 64 O. S., 257 at 264:

“They may without a warrant make an arrest on view for an offense committed in their presence, as well as on a warrant. The peace and good order of society requires that they should have such power; but the protection of the individual requires that the same should be exercised in a reasonable and prudent manner; and to secure this, a bond with sureties is exacted for the faithful discharge of their duties.” (Italics ours.)

This language disposes of the meaning of the word “faithful” and we have no difficulty in determining the meaning of the words “honestly” and “impartially;” for in neither case can the broadest stretch of imagination imply that these words can be associated with a negligent act.

We are referred to the syllabus in the case of American Guaranty Company v. McNiece, 111 O. S., 532, in which the Supreme Court recently said:

“The sureties on a bond of an officer, 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.” (Italics ours.)

It is claimed that this syllabus, being the law of the case, gives a cause of action against a surety for negligence. This syllabus must be read in the light of the more recent decision of the Supreme Court in B. & O. R. R. Co. v. Baillie, 112 O. S., 567, in which the court say: “The syllabus of a decision of the Supreme Court of Ohio definitely states the law of Ohio with reference to the facts upon which it is predicated, and must be read in view of the facts found in such case.” A casual reading of the opinion in the case of American Guaranty Company v. McNiece will show at once that it was an action “for the unlawful assaulting and shooting of plaintiff.” No claim of negligence is to be found.

Our opinion is that the petition does not state a cause of action against this defendant; and that the demurrer should be sustained upon this ground. The first and second grounds do not appear to be well taken.

Upon the third ground where the claim is made that separate causes of action against several defendants are improperly joined, we are of the opinion that this is well taken and that the demurrer should be sustained. We find a provision in the code as follows:

“Section 11307. Must Affect All Parties — The causes of action so united must not require different places of trial, and, except as otherwise provided, must affect all the parties to the action. (R. S. 5059).”

In Bliss on Code Pleading (3rd Ed.), Section 117, the author states: “The pleader will not be likely to overlook the express requirement that, in the joinder of causes of action, they must affect all the parties to the action.”

In Vol. 1, Kinkead’s Code Pleading, we find the following:

“Section 102. Misjoinder of Separate Causes of Action against Several Defendants — Where causes of action are joined against two or more defendants which do not affect all of them, a demurrer will lie thereto at the instance of a defendant who is so affected.” See Jones v. Wright, 1 O. C. C. (N.S.), 59; also Pomeroy’s Code Remedies, Sec. 374, 480, and Vol. 2 Bates’ New Pl., p. 1174.

Causes of action not affecting all the parties can not be joined; and the defect may be reached by demurrer. Nichols v. Drew, 94 N. Y., 22 at 26. Where an assessor gave bond in the sum of $2,500, a suit was brought on the bond against the sureties for that amount; but damages were claimed against the assessor for $10,000.00. The court, in State v. Kruttschnitt, 4 Nevada, 667 at 668 say:

“We know of no principle or practice by which a suit on a bond against A B and C can be united with an action for damages against A alone. * * * The two actions cannot be united.” See also Hays v. Buffalo & Niagara Falls R. R. Co., 29 Barb. (N. Y.) 391 and 394.

We find a ruling by Dean Roscoe Pound, of Harvard Law School, made while he was a Commissioner of the Supreme Court of Nebraska in Stewart v. Rosengren, 66 Neb., 445 at 448, in which he uses the following language: “causes of action against different persons upon separate and distinct several contracts cannot be joined in one action. The causes of action joined must affect all the parties to the action.” See also Mahler v. Schmidt, 50 N. Y. Sup. Ct., 512 at. 514 (43 Hun).

In Lindh v. Crowley, 26 Kas., 47 at 50, we find the following statement:

“The plaintiff could not properly unite the causes of action against J. W. Crowley and Mary Crowley upon the notes with the causes of action against Freeman upon the judgments. It will not do to unite in one pleading a cause of action against two or more with a cause of action against a part of the defendants only. Brenner v. Egly, 23 Kas., 123.”

In Hoy v. Raymond, 25 Kas., 665, a similar situation to the one at bar is presented at page 667 where the court say:

“But the question then arises, can a cause of action for the wrong of a deputy constable, and against him, be united with a cause of action for a breach of the constable’s bond and against a surety on the bond? This question, we think, must be answered in the negative both upon principle and authority. Waterbury v. Westervelt, 9 N. Y., 598; King v. Orser, 4 Duer, 431; McIntyre v. Trumbull, 7 Johnson, 35.”

In Ramsey v. Dietz, 21 O. N. P. (N.S.), 117, it was ruled a cause of action for legal services cannot be joined against an individual and also against the same defendant as administrator where the causes do not affect all the parties to the action. We are of the opinion the same principle is involved where the court, speaking through the late Judge Geoghegan say:

“It therefore seems that this petition is an attempt to join four separate causes of action against four separate classes of defendants, which said causes of action do not affect all the parties to the action, and some of which require different places of trial.”

'The annotations found under Section 11307 of the General Code, cite Gravell v. Speakman, 8 O. N. P. (N.S.), 246, to the effect that a cause of action against an officer may be joined with one jointly against the officer and his surety. But on page 248 it is made clear that both causes affect both parties. This decision is, therefore, distinguishable from the case at bar.

We have reached the conclusion that the third ground of the demurrer is well taken; and that the separate causes of action against the two defendants are improperly joined. It does not seem that this petition may be amended to conform to the requirements of the Code; and, therefore, the plaintiff will be required to elect upon which cause of action she will proceed. The demurrer is sustained on two grounds.  