32 S.E.2d 105 | Ga. Ct. App. | 1944
1. This court is without authority to consider a ground of a demurrer which was not passed upon in the judgment of the court below.
2. The sheriff and the sureties on his bond are liable in damages to a party entitled to sue therefor under the law, for an illegal homicide committed by the sheriff by virtue of his office or under color of his office. *698
3. We do not decide as to the measure of damages in the instant case because the judgment of the lower court did not pass on this ground of the demurrer.
The defendants' demurrers are: "1. Because said petition sets forth no valid or legal cause of action against these defendants. 2. Because this is a suit on the official bond of Luther C. Middlebrooks and the surety on his bond, and it appears from the allegations of the petition that the homicide of plaintiff's son was not committed by the said sheriff under color of his office as sheriff, or by virtue of his office as sheriff, and does not show any liability under said bond for said homicide. 3. Defendants demur to paragraph fourteen of the petition, and move to strike the same for the following reasons: (a) Because the allegation that defendant, Sheriff Middlebrooks, was, at the time and place complained of in the petition, acting in his official capacity as sheriff and jailer of Spalding County, Georgia, is a mere conclusion of the pleader, and is not supported by any allegations of facts. (b) Because the facts alleged show affirmatively that at said time and place the said defendant. *701 Luther C. Middlebrooks, was not acting under color of his office as sheriff, nor by virtue of his office as sheriff, but was acting as a private citizen, for which alleged conduct no action will lie on his official bond. 4. Because there is a misjoinder of causes of action in that in the same count of the petition, the plaintiff is seeking to recover the full value of the life of her son under Code section 105-1307, and to recover on his bond, under Code section 89-421, the amount of injury actually sustained by her on account of his death. 5. Defendants demur to paragraphs 6, 11, and 12 of the petition, and move to strike the same for the following reason: Because this is a suit on the official bond of Luther C. Middlebrooks, as sheriff, and the sureties on his bond, in which the measure of damages is prescribed in Code section 89-421, as the amount of injury actually sustained; and said allegations in paragraphs 6, 11, and 12 of the petition relate only to the full value of the life of the deceased, which can not be recovered in this action, and are irrelevant and immaterial to any of the issues in the case. 6. Defendants demur to subsection `a' of paragraph 10 of the petition and move to strike the same because the allegations in said subsection are irrelevant and immaterial to any of the issues involved in the case and are prejudicial and unfair to defendants, and throw no light upon any issue involved in the case. . . Filed in office April 12, 1944."
Thereafter, on April 22, 1944, the plaintiff filed an amendment to her petition as follows: "1. By adding to paragraph 6 of her original petition the following allegation: That her son, James Smith, left no wife or child surviving him. 2. By adding at the end of paragraph 14 of her original petition the following allegation: At the time of the acts herein complained of the defendant Sheriff Middlebrooks was acting by virtue of his office as sheriff of Spalding County and under color of his office as sheriff of Spalding County, and that in such capacities he, without lawful cause and not in self-defense shot and killed her son, James Smith, as hereinbefore set forth."
Whereupon, on May 2, 1944, the defendants renewed their demurrer as follows: "And now come the defendants in the above stated case, and renew their demurrer heretofore filed in said case to the petition as amended. 1. Defendants demur to paragraph 2 of the amendment filed on April 22d, 1944, and move to strike *702 said paragraph 2 for the following reasons: (a) Because the allegations contained in said paragraph are mere conclusions of the pleader and state no facts upon which said conclusion is based. (b) Because the allegations of the petition show affirmatively that the said defendant, Sheriff Middlebrooks, was not acting by virtue of his office as sheriff of Spalding County, or under color of his office as sheriff of Spalding County, but was acting in his individual capacity. And defendants show that neither the sheriff nor his bondsmen are liable for said homicide on his official bond."
In passing upon the issues thus made by the pleadings the court on May 17, 1944, passed the following order: "The demurrers heretofore filed by the defendant in the above-stated case to the plaintiff's petition, on April 12th, 1944, and renewed on May 2d, 1944, coming on duly to be heard at the time and place set for a hearing, after argument and due consideration, and holding the matter under advisement to this day, it is now therefore ordered and adjudged as follows: (1) Paragraphs 1 and 2 of the demurrer filed on April 12th, 1944, are hereby sustained. (2) Having sustained the general demurrers as above set forth it becomes unnecessary to pass upon any of the other paragraphs of this demurrer or in the demurrer filed on May 2d, 1944. Wherefore, it is now ordered and adjudged that said petition of plaintiff be and the same is hereby stricken and dismissed." 1. As we construe the judgment of the court, there is here but one question presented for decision and that is whether under the allegations of the petition, the sheriff, when he killed James Smith, was acting by virtue of his office or under color of his office, on the one hand, or as an individual, on the other hand. Learned counsel for the defendants argue that the judgment on the demurrer also decided the question of the measure of damages, and contend that if the plaintiff is entitled to recover at all, she is not entitled to recover the full value of the life of the deceased, but only to the extent of the contributions he made to her. It is contended that in a petition such as is now before us, as to the surety on the official bond, the measure of the recovery against the surety is as prescribed in the Code, § 89-421, and "shall be the amount of injury actually sustained," and not the full value of the *703 life of the plaintiff's son, as prescribed in § 105-1307. As we construe the judgment of the trial court, which we have set forth above, the court did not pass upon this question. The fourth paragraph of the demurrer deals with the question of the measure to be applied to determine the recovery. The court specifically stated in the judgment that he was not passing upon any of the paragraphs of the demurrer except paragraphs 1 and 2. It is true that paragraph 1 alleges that the petition sets forth no cause of action, but in sustaining this paragraph in connection with paragraph 2, the judgment thereon could not be construed and extended to apply to the allegations of paragraph 4. In arguing paragraph 4 counsel for the surety must necessarily concede that the plaintiff (if the acts of the sheriff were under color of his office or by virtue of his office) is entitled to recover the amount of the contributions, or for the full value of the life. This goes to the measure, rather than to the right of recovery. In our view of the case it therefore follows that the court passed on only one question in the petition, and that is whether the sheriff acted by virtue of his office or under color of it in killing the deceased. The trial court not having passed on any other question, this court is without authority to pass on any other question.
2. Let us next inquire whether, under the allegations of the petition, the sheriff was acting (a) by virtue of his office; or (b) under color of his office; or (c) in his individual and personal capacity. There are a number of decisions of our appellate courts dealing with cases arising from the conduct of a sheriff in his official capacity by virtue of his office and under color of his office, and we will not engage in any lengthy discussion concerning this issue, but we will refer to some of these cases. An act done under color of office is discussed inLuther v. Banks,
We may concede that the patrolman had a right to make the arrest without a warrant, under the provisions of the Code, § 27-207, in that the misdemeanor committed by Holloway for not dimming his lights was committed in the presence of the patrolman, and that the law allows a reasonable time after the arrest to procure a warrant, under the provisions of § 27-212. It is also true that the sheriff had authority, if indeed it was not his duty, to receive Holloway from the patrolman, under the provisions of § 77-9902. Thus far the allegations show that the sheriff received Holloway, a member of the deceased's party, and placed him in jail by virtue of the authority of his office as sheriff. Let us see what thereafter happened. The sheriff also received the keys to the Smith car from the patrolman, thus, according to the allegations of the petition, leaving the five remaining companions of Holloway (including Smith) stranded in Griffin, Georgia, with no way to return to their homes. To us it is plain that the sheriff had no authority to retain these keys, but in doing so, having received them from the patrolman at the time he received Holloway, he was acting under color of his office. He certainly did not receive them in an individual capacity any more than he received Holloway in an individual capacity. He was acting throughout, thus far, by virtue of his office and under color of his office. The petition further alleges, immediately in this connection, that "after a few minutes her [meaning the plaintiff's] said son went back to the jail, for the purpose of asking defendant Sheriff Middlebrooksto let him pay Mr. Holloway's fine, or give bond, and especiallyto get the keys to his car as there was an urgent necessity forhim to have the keys so they could proceed to their home inThomaston. That he knocked on the door, and defendant Sheriff Middlebrooks, answered the knock, and that immediately defendant Sheriff Middlebrooks assaulted and struck her said son on the nose with a *706 blackjack or some other weapon, breaking his nose and causing it to bleed profusely, and at that time the wife of defendant Sheriff Middlebrooks came out of the door with a pistol and threatened to shoot him; that her said son took the pistol out of her hand and started back toward his car, and had gotten some twenty feet from the steps when he was shot in the back of the head by defendant Sheriff Middlebrooks and instantly killed." (Italics ours.)
Under these circumstances we conclude that the deceased had a perfect right to return to the jail for the purpose, as alleged, of making an effort to obtain the keys to his car; and we also think that he had a right to return for the purpose of discussing with the sheriff the matter of a bond for Holloway. It is true that the sheriff had no right to assess a fine for Holloway. We find little difficulty in reaching the conclusion that the deceased had a right to return to the jail for the purpose of discussing the procurement of his keys, and to discuss the question of a bond for Holloway with Mr. Middlebrooks in his official capacity of sheriff and not as an individual. We think such is the right of every citizen, in this country. At this stage of the transaction the petition alleges that the deceased knocked on the door, and that the sheriff answered the knock and immediately assaulted the deceased with a blackjack or some other weapon, striking him in the face, breaking his nose and causing it to bleed profusely. Then it was that the sheriff's wife came out of the door with a pistol, and threatened to shoot the deceased. Thereupon the deceased took the pistol from her and started back toward his car. When he had turned and gotten about twenty feet from the steps (where the sheriff was standing) the sheriff shot him in the back of the head, killing him instantly. Viewing the whole transaction — from the time of the arrest of Holloway until the fatal shooting — it reveals throughout that the sheriff was acting in part by virtue of his office and in part under color of his office. So far as the allegations of the petition go, by which we are bound, at no time was the sheriff acting in his individual and personal capacity as a citizen.
In this view of the question before us, the court erred in sustaining the demurrer and dismissing the petition.
Judgment reversed. Broyles, C. J., and MacIntyre, J., concur. *707