42 Ga. App. 84 | Ga. Ct. App. | 1930
Mrs. W. J. B. Hodge brought suit against M. L. Slater as principal, and the United States Fidelity and Guaranty Company as surety, on Slater’s official bond as a county police officer of Morgan County, the bond being conditioned for the faithful discharge by Slater of the duties of the office. The .plaintiff sought to recover for an alleged breach of the bond in the homicide of the plaintiff’s husband by Slater. The material allegations in the petition are substantially as follows: Slater and J. E. Ivey, both of whom were county police officers of Morgan County, and the plaintiff’s husband, who was not an officer, but who was requested by the' defendant to accompany him, raided a distillery and brought into the city of Madison a quantity of intoxicating liquor, and, after pouring out some of it, placed the remainder in the care of the night policeman of the city, and then went away. Slater afterwards returned and poured out the liquor which had been left with the night policeman; and immediately afterwards policeman Ivey returned and made inquiry respecting the pouring out of the liquor. In the language of the petition the following then occured: “ One word led to another until blows were exchanged, but the combatants were separated. Within a few minutes, however, the altercation was renewed, said Ivey struck at said Slater with a chair but missed him, and said Slater shot said Ivey in the arm. The said city policeman intervened. Said Ivey abandoned the conflict and was hastily retreating, with no accessible weapon at hand, when said Slater fired upon said Ivey again without just cause. The bullet missed its mark, but struck and killed said Hodge, who was using every effort to get oirt of the way and who was without fault and wholly blameless.”
General and special demurrers to the petition were sustained, and the plaintiff excepted.
Under the rule as laid down in Robertson v. Smith, 16 Ga. App. 760 (85 S. E. 988), there can be no liability upon a public officer’s official bond unless the act complained of was done in the exercise of his official duty, either “virtute officii or colore officii.” So far as the allegations in the petition disclose, the defendant when he feloniously shot and killed the plaintiff’s husband was not per
The suggestion that since the act approved Aug. 17, 1914, authorizing the appointment of county police officers (Ga. L. 1914, p. 142, sec. 6), as contained in section 855(6) of the Michie Code of 1926, provides that “any one injured or damaged by any one of said county police may bring suit upon his bond,” the act of the defendant, being performed while acting as a county police officer, gives rise to a cause of action upon the bond, is untenable. ’ In im
Judgment affirmed.