
    Case 15 — Action upon an Official Bond —
    May 31
    Coleman v. Eaker, &c.
    APPEAL FROM M’CRACKEN CIRCUIT COURT.
    Judgment for Defendants and Plaintiff Appeals.
    Affirmed.
    Public Officers — Failure to Aver Approval of Bond — Liability of Road Supervisor on Bond.
    Held: 1. Under Kentucky Statutes, section 4314, requiring the ■county supervisor of roads to execute bond in the county court, ■to he approved by the court, in an action on a bond executed by that officer, the petition is not good where there is no averment that the bond was executed before the county court, or was ever approved or accepted by that court.
    2. There can he no recovery on the bond of a county supervisor of roads for personal injuries resulting from the breaking of >a plank bridge or culvert forming part of a public road.
    L. K. Taylor, attorney for appellant.
    In this action the appellant seeks a judgment for damages on account of personal injuries on a public highway; the defendants being the county road supervisor and his bondsmen.
    The only question is di'd the trial court err in sustaining the demurrer.
    This action is based on section 4314 .of the Kentucky Statutes; said .section requires a bond of the supervisor, and then adds: “The said county court, or any person aggrieved, may, •from time to time institute suit against the supervisor and his isiurteities on said bond ... for any loss or damage sustained iby the acts or omissions of the supervisor.”
    The next section, 4315, defines how the supervisor shall have the work done on bridges and culverts which are not included in his contracts for the working of roads.
    In view of these statutory provisions, I submit that the trial court ered in sustaining the demurrer to the petition.
    HUSBANDS & CALDWELL, for appellee.
    The sole question in this case is, whether the petition states •a cause of action. We maintain that it does not, and that the demurrer was properly sustained to it.
    1. The petition does not allege that the bond was executed in or before any court, or was ever approved or accepted by any court.
    2. The petition does not set out, nor attempt .to set out, any covenant contained in the alleged bond, nor does it allege that ■there was any understanding or covenant of any kind contained in the bond. Nor does it appear to whom the bond was executed.
    3. There is no authority for the appointment of such official as ' supervisor of roads, except in counties where public roads are maintained by taxation, and there is no allegation in the petition that .such roads are maintained by taxation in Mc-Cracken county.-
    4 A careful analysis -of the entire chapter 110, Kentucky Statutes, will show that it .was not the purpose of the Legislature to make supervisors of roads responsible in damages to persons who sustained .injuries from the public roads not being in repair. The ■same duties in regard to keeping the road in good order have heretofore for a hundred years been imposed on “overseers,” and they have never been held liable for damages in such ■cases as this.
   Opinion of the court by

CHIEF JUSTICE PAYNTER

Affirming.

The question involved ,is as to whether the petition states a canse of action. The 'appellant seeks to' recover damages from the appellees for the reason, as he avers, that while passing over a plank bridge or culvert, part of the public road under the care and supervision of the appellee, Ealcer, as supervisor -of roads in McCracken county, one of the wheels of his vehicle was thrown into a hole by a plank giving away, thus causing his horse to take fright and throw him violently from the vehicle, from which fall he sustained bodily injuries, and .also a partial loss of Ms vehicle. The action was based upon a bond which it is claimed that Eaker executed, with his co-appellees as sureties, for the faithful performance of his duties as supervisor.

Section 4313, Kentucky Statutes, provide® that the fiscal court of a county wherein the roads are worked by taxation may appoint a supervisor of roads. Section 4314, Id., provides that the supervisor shall, at the next regular term of the county court after Ms appointment, execute bond to the Commonwealth for the benefit of the county, and with sureties to be approved by the court, in double the- amount of the bridge and road funds, and shall take oath for the faithful discharge of his duties. The taking of the oath and the execution of the bond shall be noted on the order book of the court. This section further provides that the “county court, o>r any person aggrieved, may, from time to time, institute suit against the supervisor and his sureties on said bond, ... in any court "of competent jurisdiction for any loss or damage sustained by the acts or omissions of the1 supervisor.” It is averred in the petition that Eaker was duly appointed supervisor of roads by the fiscal court of McCracken county; that he executed bond in the sum of $20,000, as required by law, for the faithful performance of his duties as such; that the bond was signed by him as principal, and certain persons (naming them) as sureties'. It is not averred that the bond was executed before the county court or was- ever approved or accepted by it. Not containing these averments, the appellant failed to state a cause of action.

Section 4315, Kentucky Statutes-, prescribe® the duties of the supervisor with reference to the roads and bridges, and read® as1 follows: “In counties wherein roads are worked by taxation, it shall be the duty of the supervisor, at the courthouse door in his county, on the1 first Monday in March in each year, after twenty days’ written or printed notice posted at each voting place in the county, to. let out to the lowest and best bidder, who shall give bond with surety, approved by the supervisor, the working and keeping in repair of all the roads in said county, for the term' of not less than one year nor more than two years thereafter, the said work to be done a® prescribed in the bond's of contractors; to let out at such times as needed, and on reasonable (printed or written) notice, the building and repairing of all such bridges and culverts as are not embraced in the contracts for working roadls; to superintend the opening, widening and changing of roads; superintend erection of gates on public roads; to receive new roads and alterations in roads> and to report same to the county court when, and in the manner directed by the county court, and to see that all roads and bridges are kept clear of obstructions, and at all times in good order for travel and transportation: provided, that for the purposes enumerated the fund raised under this act, and which may be otherwise raised by the levy court, shall be sufficient; and if not sufficient, then it is to be used at such places and for such purposes as the supervisor, under the general directions of said court, may deem proper; and the court, in giving such directions, shall have due regard to the public good, and to the wants of the different parts, of the county. . . .” The. supervisor, the appointment of whom is authorized by the sections of the statute mentioned, is an officer, and1 is required to give bond as such. The covenants of his bond require him to account to the county court, or any person aggrieved, for any loss or damages sustained by Ms acts or ‘omissions: It would not be proper to attempt to state tbe acts of omissions for which an action might be brought by the county or a person aggrieved against him and his sureties; but We are of the opinion that the appellant is not entitled to recover on his bond as supervisor for the alleged injury, even if it has been regularly executed, accepted, and approved. It would not have been in the contemplation of the Legislature that a supervisor should be liable on 'his official bond for an injury like the one for wMch this action was brought. No one could afford to accept the position if it was attended' with such responsibilities. The judgment is affirmed.  