36 Ga. App. 817 | Ga. Ct. App. | 1927
Mrs. John Copeland brought suit against Henry Dunehoo, deputy sheriff of Floyd County, and Fidelity & Deposit Company of Maryland, for a breach of Dunehoo’s official bond to the sheriff, on which the company was surety. The court sustained general and so-called special demurrers filed by the defendants, and the plaintiff excepted.
The plaintiff laid her damages at $1000, and by her petition made the following case: The bond sued on was conditioned for the faithful performance by the principal of all his duties as deputy sheriff during the term of his appointment, and was in full force and effect at the time of .the wrongs complained of. The petition alleged, that on December 17, 1925, Dunehoo, as deputy sheriff of Floyd County, was stationed at Lindale, and it was one .of his special duties as such officer “to ferret out and arrest persons engaged in the violation of the prohibition law of the State of Georgia;” that as such deputy sheriff, on said date, some person, whose name is unknown to the petitioner, informed said deputy sheriff that petitioner, who lived a few miles south of Lindale, had gone to Cedartown in an automobile for the purpose of securing a quantity of intoxicating liquor, and that petitioner would return to her home, with said intoxicating liquor in said automobile,
“Petitioner shows that the said deputy sheriff had no right to shoot at her, that she had committed no felony, and that his said act of shooting at her was wrongful and illegal; and that even though said deputy sheriff was in the performance of his duty as an officer of the law, in ferreting out an alleged violation of the prohibition law, and in arresting said petitioner for a violation of the prohibition law, and even though said officer was engaged in an act under the color of his office and by virtue of his office, that nevertheless, when said deputy sheriff shot at . . petitioner as
One who is aggrieved by the official misconduct of a deputy sheriff may at Ms option sue either on the sheriff’s bond or on the 'deputy’s bond. Civil Code (1910), §§ 294, 295. The bond of the deputy, who is the principal defendant in this case, subjected him and his surety to liability for any wrongful act committed by virtue of his office, as- well as for his failure to perform or for the improper or neglectful performance of any of the duties imposed upon him by law. Civil Code (1910), § 291. The fact that a tort by the officer is disclosed does not render the action one ex delicto. Under the facts alleged in this case, the commission of the tort was a violation of the bond, and the petition is construed as an action for the breach thereof. We think it clearly charges a wrongful act done under color of office, for which the officer and his surety may be held liable on the bond, provided the damages sued for are recoverable. Robertson v. Smith, 16 Ga. App. 760 (85 S. E. 988); Civil Code (1910), § 767; Fidelity &c. Co. v. Smith, 35 Ga. App. 744 (134 S. E. 801), and cit.
The petition alleges no actual physical injury, and punitive damages only are sued for. Are such damages recoverable under the facts set forth in the petition ? Section 299 of the Civil Code (1910) provides: “The measure of damages upon all official
It is claimed by the defendants that the plaintiff is seeking to recover only for the “great mental fear for her life” and for her “pain and agony,” and that these are not elements of recoverable damages in the absence of an additional and actual injury of some sort. Whether this contention is answered in the particular case by the provisions of section 299, the leading case in this State (Chapman v. Western Union Telegraph Co., 88 Ga. 763, 15 S. E. 901, 17 L. R. A. 430, 30 Am. St. R. 183) on the doctrine which the defendants here invoke plainly differentiates such cases as involve an infringement of personal security or personal liberty and other wrongs which are essentially wilful. On page 768 it was pointed out that “An assault is an active threat against the body, an offer of violence endangering the person, which the law redresses even in its initial stage, thus protecting the physical per
According to the allegations, the plaintiff had done no wrong, had committed no offense. The officer did not suspect her of having committed other than a misdemeanor; and even if she had been guilty of that offense, and was fleeing from arrest or detection, he had no right to shoot her or to shoot at her. Paramore v. State, 161 Ga. 166 (2) (129 S. E. 772); Douglass v. State, 152 Ga. 379 (4) (110 S. E. 168). Under the allegations of the petition, the officer committed against the plaintiff the offense of shooting at another (Penal Code, § 115), which is a form of aggravated assault. Penal Code, § 95. In a suit for such a wrong, “it is not necessary to allege and prove any pecuniary loss, or even actual physical injury, to warrant a recovery.” Pye v. Gillis, 9 Ga. App. 725 (2) (72 S. E. 190). See also Cole v. Atlanta & West Point R. Co., 102 Ga. 474 (31 S. E. 107); Sappington v. Atlanta & West Point R. Co., 127 Ga. 178 (56 S. E. 311). For the purposes of this case, the officer is conclusively presumed to have known the law (Ryan v. State, 104 Ga. 78, 80, 30 S. E. 678); and this .being true, his act of shooting at the plaintiff appears to have been wilful or wanton in fact, and in such cases the plaintiff is entitled to recover for fright and mental suffering without proof of other injury. Williamson v. Central of Ga. Ry. Co., 127 Ga. 125 (4) (56 S. E. 119); Hines v. Evans, 25 Ga. App. 829 (105 S. E. 59); Pullman Co. v. Strang, 35 Ga. App. 59 (5, 6, 7) (132 S. E. 399).
Furthermore, it was not even essential to the statement of a cause of action that the plaintiff should have made the allegations respecting her fear and mental suffering, in view of the other facts appearing, although such allegations may, perhaps, be relevant, if proved, for the purpose of enlarging the recovery. The code says in effect that the principal and his surety on an official bond are liable for smart-money where the officer has acted in bad faith, even if no damage has been sustained, the recovery not to be excessive or oppressive, in consideration of all the circumstances. We think it clear that the petition shows bad faith sufficiently for the recovery of smart-money. The facts narrated in the petition would warrant the inference that the acts complained of were intentional and wilful, irrespective of the express allegations to that effect.
The exact inquiry, however, is not whether the acts were intentional or wilful, but whether they were in bad faith. The “bad faith” referred to in section 299 of the code may be of a different character from that which under certain conditions will authorize a recovery of damages and attorney’s fees in suits on insurance policies. Civil Code (1910), § 2549. Counsel for the defendants say that “bad faith involves fraud, deceit, duress, or some such act, and is a state of mind,” and with this we agree. See Traders Insurance Co. v. Mann, 118 Ga. 381 (7), 385 (45 S. E. 426). It is at least the opposite of good faith, and it could not well be contended that a person in good faith committed the offense of shooting at another. The inference of bad faith may be drawn from the facts set forth in the petition, even though there is no specific al
Judgment reversed.