16 Ga. App. 760 | Ga. Ct. App. | 1913
Lead Opinion
This was an action by a widow to recover of the sheriff of Bibb county and the sureties upon his official bond, for the homicide of the plaintiff’s husband by one of the sheriff’s deputies. The petition is substantially as follows: The deputy was sent by the sheriff to make an arrest at a time when the deputy was under the influence of whislry, and not in a condition, mentally or physically, to perform the duties of his office, and this fact was known to the sheriff, or could have been ascertained by the exercise of ordinary care. After the deputy reached the scene of the alleged crime he “made an unwarranted, illegal, and indefensible attack upon” the plaintiff’s husband, and “without any justification or mitigation therefor, while acting as deputy sheriff as aforesaid,” shot the plaintiff’s husband, who shortly thereafter died as a result of the wounds thus inflicted. The deputy has been convicted of the murder of the plaintiff’s husband and is now serving a life sentence therefor. The killing occurred in Jones county. The sheriff was negligent in sending out the deputy while he was under the influence of alcoholic drink, and was also negligent in selecting a
Both the sheriff and his surety demurred on the ground that no breach of official duty by the sheriff was alleged, it appearing that the homicide was the personal act of the deputy and wholly outside the scope qf his official duty. The demurrers were overruled and the defendants excepted.
The sheriff’s bond is in the language of the statute, and is conditioned for the faithful performance of "all and singular his duties as sheriff of said county during the term for which he has been elected, by himself, his deputies, or jailer, and upon the terms required by law.” Civil Code, § 4906. Do the facts pleaded show such official misconduct on the part of the sheriff as would authorize a recovery upon his bond ? Unless they do, no recovery can be had upon the bond, even though the sheriff might be subject to suit as an individual for the consequences of his agent’s negligence. Board of Education v. Fudge, 4 Ga. App. 637 (62 S. E. 154). The obligation of a surety is strictly construed in his favor, and before he will be liable the ease must be clearly within the terms of his bond. The duties of a sheriff are set forth in section 4914 of the Civil Code, and generally he is bound to perform such duties as are imposed upon him by law or which necessarily appertain to his office. He is liable upon his bond to any person injured, "as well by any wrongful act committed under color of his office as by his failure to perform, or by the improper or neglectful performance of those duties imposed by law.” Civil Code, § 291. Eor the official misconduct of a deputy, suit may be brought upon his or the sheriff’s bond, at the option of the injured party. Civil Code, § 295. If, therefore, the petition sufficiently charges official misconduct on the part of the deputy, the suit upon the sheriff’s bond can be maintained. Some of the eases hold that if the act of the officer was illegal, as, for example, an attempt to execute a process void upon its face, no suit upon the official bond will lie even though the act was under color of official authority. See Turner v. Collier, 4 Heisk. (51 Tenn.) 89; State v. McDonough, 9 Mo. App. 63; McLendon v. State, 92 Tenn. 520 (22 S. W. 200, 21 L. R. A. 738); Chandler v. Rutherford, 101 Fed. 774 (43 C. C. A. 218). In other cases it is held that the mere fact that the officer’s act was illegal
The demurrer should have been sustained.
Judgment reversed.
Dissenting Opinion
dissenting. I can not see how a sworn and bonded officer who sends a drunken deputy to perform a specific duty can be excused if this deputy whom he sent forth commits a murder while still acting under color of office and though only ostensibly prosecuting his quest. In my opinion, the plaintiff’s petition states a case of official misconduct, and the plaintiff is entitled to something more substantial than the mere comment that the killing of Smith by Norton, viewed merely as the act of an individual, must be regarded as lamentably reckless and wrongful. No special demurrer was filed, and, in the absence of a special demurrer, the facts stated, in my judgment, authorize the statement of the petition that Norton killed Smith, the plaintiff’s husband, while “acting as deputy sheriff as aforesaid.” If (as must be conceded) the killing was not done virtute officii, it was done colore officii. Even if the petition be subject to special demurrer, it is very plain to me that it was fully able to withstand the general demurrer. I am, therefore, of the opinion that the learned trial judge correctly overruled the general demurrer interposed to this action against Norton, Robertson, and the American Bonding Company, as surety on Robertson’s bond.
According to the allegations of the petition, Róbertsoñ was the sheriff and Norton was his deputy. Robertson was notified that a crime had been committed in the eastern portion of Bibb county, and was requested to send an officer to make certain arrests. Robertson was personally present when Norton started on that mission,
It is argued that Norton did not have authority by virtue of his office to murder Smith under any circumstances, and did not have authority to cross the Bibb county line into Jones county for the purpose of arresting or making an assault upon him. If a sheriff and the surety on his bond were liable only for acts which were absolutely legal, there could never be any recovery upon a bond, and there would not be any necessity for his filing a bond. In the case of Jefferson v. Hartley (supra), a sheriff, in executing a writ of possession, removed from the premises a person not mentioned in the writ and not within the legal operation of the writ. The sheriff did not have any authority under the law to remove such person. Nevertheless, the Supreme Court held that the removal amounted to official misconduct, and that by such removal the sheriff subjected himself and the sureties on his bond to an action in behalf of 'the person aggrieved. The decision in that cause is also authority for the proposition that there is no necessity for bringing a separate action against a sheriff, but a recovery can be had upon the official bond. In the opinion (p. 719) Chief Justice Bleckley cited with approval the decision of the Supreme Court of the United States in the case of Lammon v. Feusier (supra), in which it was held that “The taking by a marshal of the United States, upon a writ of attachment on mesne process against one person, of the goods of another, is a breach of the condition of his official bond, for which his sureties are liable.” The court there said: “The marshal, in serving a writ of attachment on mesne process, which directs him to take the property of a particular person, acts officially. His official duty is to take the property of that person, and of that person only; and to take only such property of his as is subject to be attached, and not property exempt by law from attachment. A neglect to take the attachable property of that person, and a taking, upon the writ, of the property of another person, or of property exempt from attachment, are equally breaches of his official duty. The taking of the attachable property of the person named in the writ is rightful; the taking of the property of another person is wrongful; but each, being done by a marshal in ex-
Under these decisions the question is not whether Norton had the official right to arrest or to kill Smith. And the question as to