
    No. 536
    CALLAGHER & NATIONAL SURETY CO. v. NIKOLICS, Admr.
    Ohio Appeals, Eighth District, Cuyahoga County
    No. 4374.
    Decided May 7, 1923
    This opinion has not been published except in Abstract.
    SURETYSHIP — Proof of execution of a bond and charge to jury thereon.
    Attorneys — Tolies, Hogsett, Ginn & Morley, for Gallagher and the National Surety Company; H. L. Deibel, for Nikolics.
   LEVINE, J.:

Epitomized Opinion

Nikolics as administrator sued Gallagher and the National Surety Company, alleging that Gallagher, while patrolman for Cleveland, wrongfully took the life of Andrew LeBoin. Nikolics alleged that Gallagher and the Surety Company gave a bond for $1,000 to the city of Cleveland for the faithful performance of Gallagher’s duties as patrolman. The evidence disclosed that a bond purporting to be signed by the National Surety Company as Gallagher’s surety was on file with the city; that the bond was signed by GaRagher and the Company, and had the latter’s seal affixed to it. Furthermore the bond was endorsed — “Official bond of Charles Gallagher as patrolman. Approved August 8, 1918, Harry L. Davis, Mayor.” Gallagher testified that he was appointed police officer, that he applied for a bond to the National Surety Company, that he was bonded for $1,000 and gave but one bond. The Surety Company introduced no evidence- as to the bond. The trial court did not charge the jury to detérmine whether or not there was due execution and delivery of the bond by the Company. This was assigned an error. The jury returned a verdict for $1,000 and judgment was rendered thereon. The Court of Appeals in affirming the judgment held:

1. Presumptive proof of the execution and delivery of the bond by the National Surety Company was established by the testimony and the court’s refusal to direct a verdict was therefore proper.

2. It was not necessary for the trial court to ask the jury to find whether or not there was due execution and delivery of the bonds when plaintiff’s evidence raised presumptive proof of it and defendants did not meet the presumption by any testimony to the contrary.  