
    Manwaring v. Geisler, an Infant, By, Etc.
    (Decided May 17, 1921.)
    
    Appeal from Campbell Circuit Court.
    1. Negligence — Evidence—Pleading.-—A plaintiff will be confined in his evidence on th© trial to the negligence charged in the petition, if it be specifically set forth, and this rule- obtains even where such specifications follow a general charge of negligence-.
    2. Negligence — Pleading.-—Where the specific acts of negligence charged in the petition are not sustained by the evidence the plaintiff must fail.
    3. Officers — Negligence—Motorcycle Policeman’s Injury to Boy — Liability Upon Bond. — A motorcycle policeman of a city is liable on his bond for negligence in running his motorcycle against the bicycle of a boy in the street where the terms of the bond are •that he will “commit no trespasses agaiinst any person under -the guise of said position for which he or the city may be held liable.”
    HOWARD M. BENTON for appellant.
    HORACE W. ROOT and B. F. GRAZIANI for appellee.
   Opinion op the Court by

Judge Sampson

Reversing.

Appellant Manwaring, a motorcycle policeman of the city of Newport, was required by the city to perform certain duties in the fire department in addition to his duties as police officer. [Before entering upon the discharge of his duties the officer was required to and did execute to the Commonwealth and the city of Newport the following bond:

“Know all Men by These Presents: That we, William E. Manwaring, as principal, and Massachusetts Bonding and Insurance Company, a corporation organized under the laws of Massachusetts, as surety, are held and firmly bound to the Commonwealth of Kentucky, and the city of Newport, in the sum of one thousand ($1,000.-00) dollars well and truly to be paid.
“The condition of the foregoing bond is as follows:
“Whereas, William E. Manwaring has been engaged as a motorcycle policeman of the city of Newport, Kentucky, during the pleasure of the board of commissioners of said city.
“Now, if the said William E. Manwaring 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 to remain in full force and effect.
“,In witness whereof, we have this first day of .May, 1919, set our hands,
“William E. Manwaring.
Massachusetts Bonding & Ins. Co.
By Howard M. Benton,
Attorney-in-fact. ’ ’

After the execution of the bond and while it was in full force and effect and at a time when the officer was in the discharge of his duties as a member of the fire department of the city, riding his motorcycle, he ran into and against the bicycle of the plaintiff and appellee Geisler, causing him to be thrown to the ground and badly injured. This suit was brought by the injured boy against the officer and his surety, the Massachusetts Bonding apd Insurance Co., to recover damages, for the alleged negligence of the officer. A verdict for $500.00 being returned and judgment 'entered thereon in favor of the plaintiff, the defendants Manwaring and his surety appeal, urging several grounds for the reversal of the judgment, which may be set out as follows: (1) There is no liability on the bond of the policeman for a trespass done by him while performing duties as a member of the fire department. (2) Public necessity exonerates a motorcycle policeman from liability for all but gross negligence. (3) The plaintiff, Geisler, was guilty of contributory negligence but for which the injury would not have happened. (4) The trial court grievously erred in instructing the jury on the law of “last clear chance” where only specific charges of negligence which do not cover the act of which complaint is made are contained in the petition. (5) The policeman’s bond covered only his official acts and is available to a citizen only when the officer has been gnilty of misfeasance, malfeasance or nonfeasance. (6) The surety on the official bond of a police officer is not liable for ordinary acts of negligence of the officer, for these are done in his individual capacity.

Appellant Manwaring- was acting both as a police officer and fireman at the time of the accident to appellee G-eisler, and it is impossible to separate his duties one from the other. In such case the surety on the bond of the policeman may be held liable. The injured party will not be required to draw fine distinctions and determine whether the officer was doing more duty as a policeman than as a fireman or vice versa, if he was performing any duty as a police officer. Nor is a peace officer exonerated from liability for an injury inflicted while in the discharge' of official duties on another on the ground of public necessity if the officer failed to exercise reasonable care for the protection of those whom he knew or by the exercise of reasonable judgment should have expected to be at the place of the injury, although he may not be criminally liable. For instance, an officer whose duty it is to make an arrest of one charged with felony may use such force and means as will prevent the escape of the prisoner, even to shooting and wounding him, but if in shooting at a fleeing prisoner a police officer should wound another on a public street where people are generally congregated and expected to be, the officer would not be exonerated from civil liability because he had a right to shoot to stop the prisoner, for it was his duty to so perform the functions of his office as not to injure another, and in shooting into a crowd or along a public thoroughfare where people were wont to travel in large numbers, he would be guilty of such failure to exercise reasonable care as would render him civilly liable for the wrong, even though he was justified in firing at the prisoner.

Coming now to the consideration of the alleged insufficiency of the pleading- of plaintiff to have warranted the trial court in giving an instruction on the law of the last clear chance, it may be said that the recognized rule in this jurisdiction is that a general allegation of negligence is sufficient to justify the introduction of evidence of any negligence which was the direct and proximate cause of the injury to the plaintiff, hut if the plaintiff in his petition sets out in specific detail the particular acts of negligence upon which he will rely for recovery he will be concluded thereby and cannot introduce evidence of other or different acts of negligence. Even if there be a general allegation of negligence and this is followed by an explanatory charge of specific acts of negligence the plaintiff will likewise be confined in evidence to the proof of the specific acts of which he complains and will not be allowed to enlarge thereon under his general averment of negligence. Gains & Co. v. Johnson, 32 R. 58; 105 S. W. 382.

The petition in this case avers that the plaintiff was injured by the defendant at a time when the defendant police officer was riding’ his motorcycle along Monmouth street in the city of Newport ££at a dangerous and unreasonable rate of speed without giving any warning, notice or signal of any kind of the approach of said motorcycle to the said infant plaintiff, and without having said motorcycle under reasonable control and keeping a lookout ahead of said motorcycle for persons using said street, suddenly and unexpectedly, and with gross and wanton carelessness and negligence drove said motorcycle upon and against infant plaintiff, and his bicycle, throwing infant plaintiff down to and upon said street with great violence, seriously injuring plaintiff and destroying his bicycle.

££Plaintiff says that by reason of said negligence and said dangerous and unreasonable rate of speed and said failure of defendant, William R. Manwaring, to give warning, notice or signal of the approach of said motorcycle as aforesaid, and his failure at said time to have said motorcycle under reasonable control and keep a lookout ahead of his said motorcycle for persons upon said street, infant plaintiff was thereby injured.”

It will be observed that the petition charges four specific acts of negligence: (1) Operation of machine at a dangerous rate of speed, (2) failure to give warning, (3) failure to have motorcycle under reasonable control, and (4) failure to keep a lookout for people on street.

No one of the specific acts of negligence charged in the pleading was. sustained by the proof. As there was no general averment of negligence and the specific acts of negligence charged do not cover the facts of this case the court should, pot have given instruction No, 1, which stated the law controlling persons having the last clear chance to avoid an injury.

The evidence for plaintiff tended to prove that the plaintiff Geisler, a boy thirteen years of age, was riding Jais bicycle along the right side of the public street late in the evening when the engine of the fire department passed going south. .The boy turned his wheel and crossed the street and started back in the direction the fire engine was g-oing. His wheel was about three or four feet from the curb and on the fight side of the street. The appellant Manwaring, who was riding a motorcycle and aiding the fire department at the time, came up behind appellee and when in about twenty feet of appellee saw him and shouted a warning to him to get out of the way, which appellee says he did not hear nor obey. Instantly thereafter the motorcycle struck the wheel of the bicycle on which Geisler was riding and threw him to the ground with great violence, inflicting the injury of which complaint is made.

It would appear from the evidence of appellee and his witnesses that appellant Manwaring could have avoided the injury to plaintiff if he had only slightly changed the course of his motorcycle after he saw the perilous position of Geisler when twenty feet away, for the two cycles were almost, if not exactly, in line. Of course the evidence of appellant tends to prove Geisler was guilty of contributory negligence in crossing the street immediately in front of the oncoming motorcycle, which was giving loud signals of its approach, as claimed by them. But the theory of plaintiff as presented by instruction No. 1, though defective, we are of the opinion, was the only one on which he could have recovered. He was not entitled to recover at all upon any other theory than that the defendant Manwaring saw the plaintiff Geisler in time to have, by the exercise of reasonable care on his part, avoided the injury and failed to do so. This instruction in the form given is erroneous in that it concludes with a proviso against contributory negligence. This part of it should have been omitted. On another trial, if the evidence be in substance the ¡same as upon the last trial, the instruction should simply be: If you believe from the evidence that defendant Manwaring, before the accident, saw or by the exercise of ordinary care could have seen plaintiff Geisler far enough in front of him that defendant could have, by the exercise of ordinary care, avoided the injury to Geisler, but failed to do so, your verdict will be for tbe plaintiff Geisler. Unless you so believe you will find for tbe defendant Manwaring. Tbis instruction should be followed by one fixing tbe measure of recovery,if any, wbicb tbe plaintiff may have should tbe jury find for him, and such other instructions and definitions as may be necessary to cover tbe case.

It is tbe contention of appellant that there can be no recovery on tbe bond by plaintiff because tbe negligence, if any, which brought about tbe injury was tbe individual negligence of Manwaring, and not an act committed by virtue of bis office. Tbis depends upon the terms of tbe bond. As is well said in 29’ Oye. 1454: ‘ ‘ Tbe liability on an official bond is determined by tbe terms of tbe bond, even where they do not comply with tbe statute requiring the bond.” The bond sued on herein is very much broader in its terms than tbe usual official bond of policemen, as will be manifest from a casual reading thereof. It undertakes to indemnify against all trespasses committed by tbe officer against any person under tbe guise of said position (motorcycle policeman) for wbicb be (Manwaring.) or the city may be held liable-. If Manwaring negligently ran bis motorcycle against tbe bicycle of plaintiff Geisler, as contended by the latter, and thus caused bis injury, Manwaring may be held liable, and bis bond, according to its terms, may be made to respond. If the bond bad run as do such bonds usually that “be will well and faithfully perform tbe duties of bis office” no liability on tbe bond would attach under tbe facts of tbis case, for there the officer would only be liable on bis bond for misfeasance-, malfeasance or nonfeasance, and not for acts of negligence like tbe one under consideration wbicb was not committed strictly within virtute officii. It would be well for every city to take from its police officers a bond with like terms-, for it would afford its citizens greater protection.

Undoubtedly tbe plaintiff Geisler is entitled to recover on tbis bond for the negligence of Manwaring, if any, while acting as motorcycle policeman, if that negligence was ¡the proximate cause of bis injury.

On a return of tbe case to tbe lower court tbe plaintiff should be allowed to amend bis petition if be- so desires and set- forth tbe negligence indicated herein, or in general terms. "When issue is joined the- court should confine tbe evidence to ,tbe facts wbicb immediately surround the injury — that wbicb took place just prior to and at tbe time of the injury to plaintiff Geisler. The court will then instruct the jury as indicated above.

For the reasons indicated the judgment is reversed for a new trial consistent herewith.  