New Amsterdam Casualty Co. v. Mathis

82 Ga. App. 421 (1950)

61 S.E.2d 422

NEW AMSTERDAM CASUALTY COMPANY v. MATHIS.

32994.

Court of Appeals of Georgia.

Decided September 14, 1950.

Rehearing Denied October 6, 1950.

Powell, Goldstein, Frazer & Murphy, C. Baxter Jones Jr., for plaintiff in error.

Fraser & Shelfer, contra.

WORRILL, J.

This is an action against the surety on the bond of a county police officer. The facts out of which the action arose, as shown by the petition, were that the plaintiff was driving his automobile in a westwardly direction on a thoroughfare in the City of Decatur when it was struck by an automobile owned by the DeKalb County Police Department and driven by the principal, an officer of such department, while he was responding to an emergency call in regard to another matter not in any way connected with the plaintiff. The petition further alleged that the driver of the vehicle was exceeding the speed limit and ran over a red traffic light, striking the plaintiff's automobile which had entered the intersection on a green light ahead of the police car; and it was alleged that these and certain other acts of the principal constituted *422 negligence proximately causing the injuries sued for. The trial court overruled a general demurrer, and the exception here is to that ruling. Held: Under the ruling of the Supreme Court in Culpepper v. U. S. F. & G. Co., 199 Ga. 56 (33 S. E. 2d, 168), there was no breach of the bond and no liability to the plaintiff on the bond, and the trial court erred in overruling the general demurrer. This case is in no material particular distinguishable from the Culpepper case.

Judgment reversed. Sutton, C.J., and Felton, J., concur.

FELTON, J., concurring specially. I concur in the judgment for the sole reason that the ruling in the Culpepper case, supra, is binding on this court.