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Error to Court of Appeals, Cuyahoga WALTERS v. BALTIMORE & O. S. W. RY. County.

Action by one Jackson against the Cleveland Railway Company. Judgment for defendant was affirmed by the Court of Appeals, and plaintiff brings error. Reversed. -[By Editorial Staff.]

Smith, Olds & Smith and Payer, Winch, Minshall & Karch, all of Cleveland, for plaintiff in error.

CO. (No. 18555.)

(Supreme Court of Ohio. Dec. 23, 1924.)

(Syllabus by Editorial Staff.)

I. Master and servant 258(13) -Petition held to state cause of action under doctrine of res ipsa loquitur, so that it was error to dismiss for refusal to amend.

Eliminating indefinite and uncertain averments, petition, alleging that engine of moSquire, Sanders & Dempsey, of Cleveland, tor car suddenly bursted and caused the same for defendant in error.

PER CURIAM. This case was tried upon the fourth amended petition, which averred, among other grounds of negligence, the following:

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"That at the time herein complained of defendant, the Cleveland Railway Company, negligently, as plaintiff was in the act of alighting from said car and at or about the instant said collision occurred, closed or started to close the door of said exit, so that the same was forced against her in a violent and sudden manner, thereby causing or contributing to cause her to be thrown against said farebox railing; and negligently failed and neglected seasonably to warn or apprise plain

tiff that said collision was imminent and that said door was about to be closed in the manner herein described."

The record of the testimony of plaintiff and several of her witnesses discloses evidence tending to prove that she received her injuries, or at least a part of them, by the closing of the doors of the car against her, and that the doors were closed against her by the agent of the defendant company prior to the instant of the collision of the automobile with the car of the defendant company. The plaintiff's evidence upon this issue, under the authority of the case of C. C. C. & St. L. Ry. Co. v. Lee, 111 Ohio St. 145 N. E. 843, the case of Pope, Adm'x, v. Mudge, 108 Ohio St. 192, 140 N. E. 501, the case of McMurtrie v. Wheeling Traction Co., 107 Ohio St. 107, 140 N. E. 636, and Vignola v. New York Cent. Rd. Co., 102 Ohio St. 194, 131 N. E. 357, was sufficient to carry the case to the jury, and it was error for the

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to suddenly jump from railroad track and throw plaintiff from car, held to state case of negligence under doctrine of res ipsa loquitur, and dismissal for refusal to amend was erroneous.

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2. Appeal and error 960 (1) Discretion abused when petition dismissed because of allegations not well pleaded.

To deprive litigant of right to try cause well pleaded, because, pleading contained certain matters not well pleaded, was abuse of discretion, and is controllable on appeal.

Error to Court of Appeals, Vinton County. Action by Edward Walters against the Baltimore & Ohio Southwestern Railway Company. Judgment for defendant was affirmed by the Court of Appeals, and plain

tiff brings error. Reversed and remanded.— [By Editorial Staff.]

John E. Blake, of McArthur, for plaintiff in error.

Otto E. Vollenweider, of McArthur, and John P. Phillips, of Chillicothe, for defendant

in error.

PER CURIAM. This cause was begun in the Common Pleas Court of Vinton county by the filing of plaintiff's petition, of which the following is a copy:

"The plaintiff says the defendant is a corporation duly organized under the laws of the state of Ohio, and doing business therein as a railroad company; that said defendant owns and operates a railroad running through Vinton county, Ohio; that on or about the 15th day of November, 1920, and prior thereto the defendant company had in its employ various workmen, consisting of section hands, foremen, and other employees, for the purpose of re

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

pairing and taking care of the tracks of said company in said county; that it also had motor cars, during the period aforesaid, propelled by the use of gasoline, and other equipments for the use of said employees in such repair; that on or about the 15th day of November and in the year 1920 the said plaintiff was in the employ of said defendant company as a section hand, whose duty it was to remove decayed railroad ties from the tracks of said company in said county, and do various other work in the repair of the said company's railroad tracks incident to his duties of such sec

tion hand; that while in the performance of his duties as such section hand at the time aforesaid the plaintiff was riding along the railroad track of said defendant company in said county on a motor car of the said defendant company, and of the kind herein stated provided by it for the purpose of transporting him and other employees of said company along its said tracks to the place of their daily work on the said company's railroad tracks in said county; and that, while riding on said motor car as aforesaid along the said tracks of said defendant company, the engine of the motor car on which he was then and there riding and other appliances of said car suddenly bursted, and this fact, in addition to other defective conditions of said car, caused the same then and there to suddenly jump from the railroad track and throw this plaintiff from said car, breaking two of his ribs, his arm, and injuring the bones of his shoulder, and producing many other injuries from which this plaintiff is now suffering.

"Plaintiff further states that the said disaster of the said motor car, consisting of its jumping from the track and throwing the plaintiff from the same, was produced solely from the defects of the engine of said car then and there installed and other defective equipments then and there in said car.

"Plaintiff further states that at the time of said injury and prior thereto defendant knew of said defective conditions of said car and, notwithstanding the knowledge of said defects, defendant permitted and required plaintiff to ride on said car at said time, and never did inform him of said defective condition of said defective car.

"Plaintiff further states at the time of receiving said injuries, and prior to and during the time he was riding on said car, he knew nothing of the defective condition of the same as herein set out, or of any other defects therein. "Plaintiff further states that by reason of said injury he became, and will be for his natural life, lame and sick, and has been disabled from attending his work as a laborer for a period of 11 months; that he was receiving at the time of his injury as stated aforesaid $3.90 per day; and that since said injury he has incurred expenses for medicine, medical attention, and nursing at the amount of $100, and is injured by reason of the facts set forth for life.

"Plaintiff therefore asks judgment against the defendant in the sum of $5,000."

A motion to make more definite and certain was filed by the defendant, which for the purposes of this case was with regard to

"(1) By stating what other appliances of said car suddenly burst, as set forth at the bottom of the first page.

"(2) By stating in detail what other defective conditions of said car caused the same to jump from the track.

"(5) By setting forth what other defective equipment plaintiff refers to in the same paragraph."

Thereafter an entry was spread upon the journal of the court as follows:

"April 27, 1923. This day this cause came on to be heard upon the motion of the defendant to require the plaintiff to make his petition more definite and certain, and was argued by counsel and submitted to the court.

"Upon consideration thereof, the court doth find the first, second, and fifth branches of said motion well taken, and doth order the plaintiff to make his petition more definite and certain by stating in detail what other defective conditions of said car caused the same to jump from the track, and by setting forth in detail what defects plaintiff refers to by the the same appears in the second paragraph on use of the words, 'defects of the engine,' as the second page of said petition, to all of which plaintiff excepts."

And more than 30 days thereafter another entry was spread upon the journal as fol

lows:

"October 24, 1923. This day this cause came on for hearing on the motion of defendant, to require plaintiff to make his petition more definite and certain, and the argument of counsel, and on consideration whereof, the court doth sustain said motion, and leave is given plaintiff to amend his petition, and, it now appearing to the court that plaintiff refuses to amend his petition, therefore the court dismisses the case at the cost of plaintiff.

"October 23, 1923. Dismissed at costs of plaintiffs; the plaintiff having refused to amend his petition."

Error was prosecuted to the Court of Appeals, where the judgment of dismissal was affirmed. Error is prosecuted here.

[1] While the form of this petition is not recommended as a model to be followed by future pleaders, yet, eliminating all the indefinite and uncertain averments particularized in the motion, it still states a case of negligence under the doctrine of res ipsa lo quitur, which doctrine is peculiarly applicable to the character of accidents described in the petition, wherein it says:

"The engine of the motor car denly bursted and *

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* caused the same to suddenly jump from the railroad track and throw this plaintiff from said car."

This court cannot anticipate what the defendant will plead by way of answer, and prove upon the trial; therefore it cannot assume that future pleadings and proof will make the federal rule of the nonapplicability of the doctrine of res ipsa loquitur to ac

(146 N.E.)

the bond of the safety director, and the United States Fidelity Company, which company was surety on the bond of the chief of police. There were also joined as defendants, Frank M. Hardesty and Don Whittaker, who were dismissed during the trial.

ble to this case, but must confine its judg- [ surety on the bond of the mayor, the Ameriment to the facts appearing in the record. can Surety Company, which was surety on [2] While the trial court in the enforcing of its orders has a wide discretion, yet that discretion is abused when the court, because of the fact that the pleading contains certain matter not well pleaded, deprives a litigant of the right to try a cause well pleaded. The dignity and authority of the court can be as well maintained by ordering the matter not well pleaded stricken from the petition as by dismissing the case and depriving the litigant of the right to have his cause tried upon the merits.

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The petition asked damages in the sum of $50,000, and a verdict was rendered by the jury in the sum of $25,300. Judgment was entered upon this verdict in the following form:

"It is therefore considered that said plaintiff recover of said defendants, Ledru R. Campbell, Jacob J. Calvert and John A. Long, the sum of twenty-five thousand, three hundred ($25,300) dollars, and also his costs of this suit; and it is further ordered and adjudged that the plainCompany of New York, as surety on the bond tiff recover of the defendant American Surety of defendant, Ledru R. Campbell, the sum of one thousand ($1,000) dollars and costs of this suit, and said $1,000, when paid by said defendant American Surety Company of New York, shall be credited on said judgment for $25,300; and it is further ordered and adjudged that the plaintiff recover of defendant United States Fidelity & Guaranty Company, as surety on the bond of defendant, John A. Long, the sum of one thousand ($1,000) dollars, which $1,000,

AMERICAN GUARANTY CO. v. MCNIECE when paid by the United States Fidelity &

et al. (No. 18344.)

(Supreme Court of Ohio. Dec. 23, 1924.)

(Syllabus by the Court.)

Officers 131-Sureties on official's bond liable to all persons unlawfully injured by officer's acts by virtue, or under color, of office. 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.

Guaranty Company, shall be credited upon said judgment of $25,300; it is further ordered and adjudged that the plaintiff recover of the defendant the American Guaranty Company, as surety on the bond of defendant, Jacob J. Calvert, the sum of two thousand ($2,000) dollars and his costs herein expended, and when said sum of $2,000 is paid by the defendant the American Guaranty Company, the same shall become a credit upon said judgment of $25,300."

Error was prosecuted to the Court of Appeals by all of the defendants against whom the judgment ran, where the judgment of the court of common pleas was affirmed, and er

Error to Court of Appeals, Guernsey ror is prosecuted here on the petition in error. County. of the American Guaranty Company, and the cross-petition in error of the American Surety Company.

Action by Thomas McNiece against Jacob J. Calvert and others. Judgment for plaintiff was affirmed by the Court of Appeals, and defendant American Guaranty Company brings error, and defendant American Surety Company assigns cross-error. Affirmed.[By Editorial Staff.]

J. W. Bell, of Cambridge, and Williams, Sinks & Williams, of Columbus, for plaintiff in error.

Scott & Scott, Milton H. Turner, James Joyce, W. W. Stewart, and Geo. D. Dugan, all of Cambridge, for defendants in error.

ROBINSON, J. The parties will be referred to here in the relation which they sustained in the trial court.

This action was begun in the court of common pleas of Guernsey county by Thomas McNiece against Jacob J. Calvert, who was at the time mayor of the city of Cambridge, John A. Long, who was at the time the chief of police of the city of Cambridge, and Ledru The record in this case discloses the folR. Campbell, who was at the time safety di- lowing facts: Jacob J. Calvert at the time rector of the city of Cambridge, and a special of the happening of the events out of which police officer, and was an action in damages this action grew was the mayor of the city of for the unlawful assaulting and shooting of Cambridge. Ledru R. Campbell was director plaintiff. Joined with the defendants were of public safety of the city of Cambridge, the American Guaranty Company, which was and also "special officer." John A. Long was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

chief of police of the city of Cambridge. The American Guaranty Company was surety on the bond of Jacob J. Calvert, as mayor, in the sum of $2,000, conditioned as follows:

of any kind authorizing them to apprehend plaintiff, and the search warrant did not purport to authorize them, or any of them, to search his automobile; that none of the parties defendant knew who was driving the car which it afterwards developed plaintiff was driving, nor had they any information upon which to base a belief that plaintiff had committed a crime, or was in the act of committing a crime; the attempt to stop the ma

"The condition of this obligation is such that whereas the said principal was on the 4th day of November, A. D. 1919, duly elected to the office of mayor of the city of Cambridge, Ohio, for the term of two years beginning on the 1st day of January, 1920, next after his said election, and until his successor is chosen and qual-chine of plaintiff and the attack upon plain

ified:

"Now, if the said principal shall faithfully perform his duties as such officer, as required by law during the term for which he has been elected as aforesaid, then this obligation shall be void, otherwise to remain in full force and virtue."

The American Surety Company was surety on the bond of Ledru R. Campbell as director of public safety, in the sum of $1,000, condi

tioned as follows:

"Whereas, said principal was, duly and in accordance with law, appointed director of public safety, of the said city of Cambridge, Ohio, to serve from the 12th day of January, 1920, and until his successor shall have been chosen and qualified:

"Now, therefore, the condition of this obligation is such that, if said principal shall faithfully perform his duties as director of public safety of the said city of Cambridge, Ohio, during the term for which he has been appointed, as aforesaid, then this obligation shall be void; otherwise, to be and remain in full force and virtue in law."

The United States Fidelity & Guaranty Company was surety on the bond of John A. Long, as chief of police, in the sum of $1,000, conditioned as follows:

"Whereas, the above bounden John A. Long has been duly appointed chief of police of the city of Cambridge, Ohio, for the term of one year beginning January 1, 1912:

"Now, therefore, the condition of his obligation is such that if the said John A. Long shall well and faithfully perform all the duties of his said office, then this obligation to be void, otherwise

to remain in full force and effect."

On or about the 11th day of March, 1921, the defendants Calvert, Campbell, and Long, armed with a search warrant to search a certain automobile for intoxicating liquors, proceeded some distance out of the corporate limits of the city of Cambridge, where they met the plaintiff, accompanied by a young lady, traveling upon the highway in an automobile. Thereupon Calvert, Campbell, and Long caused the automobile in which they were riding to turn around and pursue plaintiff. After passing his automobile a number of times, and allowing him to pass them a number of times, they proceeded on past him several hundred yards, stopped their automobile, got out, and as he passed them on the public highway opened fire upon him and seriously injured him. The record further discloses that none of the parties had a writ

that he was in the commission of a misdetiff being made wholly upon the suspicion meanor, to wit, the unlawful transportation of intoxicating liquors; that a search of the person of the plaintiff and his car after the shooting disclosed nothing upon which to found such suspicion.

liability of the defendants Calvert, Campbell, There is no question raised here as to the and Long, to respond in damages for the injury thus committed, and no error is prosecuted here by the United States Fidelity Company as surety for the defendant Long. Error is prosecuted here by the surety company of the defendant Calvert and by the surety company of the defendant Campbell.

The principal ground upon which each of such companies relies for a reversal is that the bonds given by the respective parties, and signed by the respective surety companies, were for the faithful performance of the duties of the respective defendants as officers of the city of Cambridge; that the powers and duties of Calvert, as mayor, and of Campbell, as safety director, whatever they may have been within the city of Cambridge, did not extend to the matter of making arrests and searching automobiles beyond the city limits; that as sureties upon the bonds they agreed to respond in the sums named in the bonds only for the breach of their principals of some duty the performance of which their respective offices imposed upon them; that the acts of the defendants complained of in plaintiff's petition were acts done by Calvert and Campbell outside their territorial jurisdiction, without power or sanction of law, and not acts done in the discharge of any duty imposed upon them by their respective offices, and were, therefore, not within the letter of the contracts of suretyship.

The soundness of the position of the insurance companies depends upon whether Ohio adheres to the theory that sureties are liable upon the bonds of their principals, conditioned for the faithful performance of the duties of the office, only for acts done virtute officii, or whether they are also liable for acts done colore officii, for the decisions of the courts of the various jurisdictions upon this subject may be divided into those two general classes.

We, however, are not privileged at this time to choose between the two lines of decisions, for this court as early as 1855, in the

(146 N.E.)

case of Ohio ex rel. Story v. Jennings, 4 Ohio under color of his office in making an arrest with or without warrant, and without probable St. 418, held: necessary." (Italics ours.) cause, he uses more force and violence than is

"A seizure of the goods of A under color of process against B is official misconduct in the officer making the seizure and is a breach of the condition of his official bond, where that is that he will faithfully perform the duties of his office. The reason for this is, that the trespass is not the act of a mere individual, but is perpetrated colore officii. For such breach, an action on the bond lies against the officer and his sureties."

Counsel for the surety companies cite the case of State ex rel. Bd. of Edn. of Cincinnati v. Griffith, 74 Ohio St. 80, 77 N. E. 686, 6 Ann. Cas. 917, where this court held:

"A public officer is personally, and may be even criminally, liable for malfeasance in office; but the sureties on his official bond are answerable only within the letter of their contract for the unfaithful performance of his official duties and not for dereliction outside of the limits of his official duties.”

They maintain it inconsistent with the case of Ohio ex rel. Story v. Jennings, supra, and We do not with Drolesbaugh v. Hill, supra. so regard it. The court there did not hold that the sureties were only liable for wrongful acts perpetrated virtute officii, but contented itself with the use of the term "official duties," and did not attempt to define wheth

Ohio is thus placed in line with those courts which have held the sureties upon the bonds of officials not only liable for the wrongful acts of their principals perpetrated virtute officii, but also for the wrongful acts of their principals perpetrated colore officii, and in line with the theory which many of the courts have declared to be the greater weight of authority. Lammon v. Feusier, 111 U. S. 17, 4 S. Ct. 286, 28 L. Ed. 337; Natl. Bank of Redempton v. Rutledge (C. C.) 84 F. 400; People ex rel. Kellogg, Adm'r, v. Schuy-er a bond of an official conditioned for the ler, Sheriff, 4 N. Y. 173; People ex rel. Norris v. Mersereau, 74 Mich. 687, 42 N. W. 153; Commonwealth ex rel. Davy v. Stockton, 5 T. B. Mon. (21 Ky.) 192; State ex rel. Gates v. Fitzpatrick, 64 Mo. 185; Archer v. Noble, 3 Greenl. (Me.) 418; Hall v. Tierney, 89 Minn. 407, 95 N. W. 219; Turner, Frazer & Co. v. Killian, 12 Neb. 580, 12 N. W. 101; Mace v. Gaddis, 3 Wash. T. 125, 13 P. 545; Sangster v. Commonwealth, 17 Grat. (Va.) 124; Lee, Sheriff, v. Charmley, 20 N. D. 570, 129 N. W. 448, 33 L. R. A. (N. S.) 275; Kane, Treas., v. Union Pac. Rd. Co., 5 Neb. 105; Charles v. Haskins, 11 Iowa, 329, 77 Am. Dec. 148; Inhabitants of Greenfield v. Wilson, 13 Gray (Mass.) 384; Brunott v. McKee, 6 Watts & S. (Pa.) 513; Van Pelt v. Littler, 14 Cal. 194; Horan v. People, 10 Ill. App. 21.

faithful performance of his duties contemplated only the duties imposed upon him by virtue of his office, or whether it also contemplated that he would both faithfully perform the duties imposed upon him by virtue of his office, and abstain from doing any wrongful act under color of his office.

That was a case where a clerk of a board of education, having given bond under section 4050, Revised Statutes, was thereafter by the adoption of a rule by the board of education authorized to collect tuition from children, wards, and apprentices of nonresidents, which was an additional duty imposed upon him by the board and not by statute. the court holding that the bondsmen were not liable for the misappropriation by the individual upon whom the board had imposed the additional duty of collecting tuition, his duty in that respect being a duty

However, the courts that have adopted the doctrine of liability both virtute officii and colore officii, have variously applied that doc-imposed by the board and not by the Legistrine so that there is not entire accord as to the character of acts colore officii for which there is a liability of sureties, it being held by some courts that the question of liability of sureties for wrongful acts done colore officii is sui generis, and dependent upon the particular circumstances of each case, and, by others, that there is a liability of the sureties for the wrongful act of their principal colore officii where the officer having a writ executes it against the wrong person, but no liability colore officii where an officer commits wrongful acts without a writ.

Here again, however, we are not at liberty to choose which theory we shall adopt, for the reason that this court in 1901, in the case of Drolesbaugh v. Hill, 64 Ohio St. 257, 60 N. E. 202, declared:

"The sureties on the bond of an officer, conditioned for the faithful discharge of his duties, are liable thereon to the party injured, where,

lature; that his acts were not performed as clerk, but were performed by virtue of the authority which the board vested or attempted to vest in him; that the board of education had no legislative power and could not increase or decrease the duties of a clerk, which the law had already defined; that the collection of the tuition by the incumbent of the clerk's office was not a collection by him in his official capacity, and was not and could not have been in contemplation of the signers of his bond at the time of the execution thereof, and that the bondsmen were only liable within the letter of the bond. That case would have been applicable in this case had the jury found that the defendant Campbell, at the time of the committing of the assault and injury upon the plaintiff, acted as "special officer" rather than as director of public safety, for the bond of Campbell was conditioned upon the faithful per

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