# State v. Herbert

> Ohio Supreme Court · December 30, 1976 · 49 Ohio St. 2d 88

URL: https://www.frixlaw.com/law-library/cases/6755962

## Case

- **Full name:** The State of Ohio v. Herbert
- **Court:** Ohio Supreme Court
- **Decided:** December 30, 1976
- **Citations:** 49 Ohio St. 2d 88; 3 Ohio Op. 3d 51; 358 N.E.2d 1090; 1976 Ohio LEXIS 775
- **Precedential status:** Published
- **Opinion:** Concurrence by Herbert
- **Judges:** Brown, Celebrezze, Corrigan, Fourth, Herbert, Neill, Stephenson, Stern
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6755962

## Opinion text

Herbert, J.,
concurring in part. It has been established that appellee Gardner knowingly violated R. C. *98 135.14. But for that malfeasance, the loss incurred by the public would not have transpired. As a matter of public policy, evidenced by the common law, Gardner should be held personally responsible for the proximate consequences of his conduct.
Relying mainly upon Seward v. National Surety Co. (1929), 120 Ohio St. 47 , 165 N. E. 537 , the majority decides that appellee Herbert should also be held personally liable for the violation committed by his deputy. This conclusion is announced in spite of the agreement of all who have perused the matter, including the trial judge, all three court of appeals’ judges, and the seven sitting members of this court, that Herbert at no time had any knowledge Gardner was even considering a violation of the statute. Clearly, Herbert had no inkling of his trusted deputy’s acts until they had already been performed. This fact is uncontroverted in the evidence. Furthermore, none of the courts which have considered this cause, including this court, have found any carelessness upon Herbert’s part, or have held that he failed to perform his duties in a proper manner.
Upon this record, the majority will force the former treasurer at the least into bankruptcy, and possibly into a lifetime of significant portions of his earnings being regularly taken to apply toward an insurmountable judgment against him. I do not agree that either the law or public policy should mandate this result.
I would disapprove statements in Seward to the effect that all public officers are personally liable for whatever is done by people in their employ concerning the handling of public moneys, irrespective of a total lack of fault on the officer’s part. Such a rule discourages those who would make the finest of administrators and public officials from ever seeking such offices. The attendant liability is shocking to contemplate, particularly in view of present day criminal statistics and the vastness of some of the offices affected.
The sureties in this action received commensurate fees for the responsibility they assumed. Theirs is a business of balancing risks against premiums and occasionally the *99 former matute into obligations. However, the hundreds of public officials across the state 4 who are charged with the handling of public or quasi-public funds have the right to rely upon a' rule which says to them: If you intentionally or carelessly eause your trust to be violated, you will be held personally liable- for its breach.
Therefore,; I concur with my colleagues in the- majority,' but not to the extent that the former Treasurer of State is' found to be personally liable for the losses suffered.
Including the members of this court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6755962. Public record. Not legal advice.