Culpepper v. United States Fidelity & Guaranty Co.

• Decision Date: 05 January 1945
• Docket Number: 15045.
• Court: Georgia Supreme Court
• Parties: CULPEPPER et al. v. UNITED STATES FIDELITY & GUARANTY CO. et al.

33 S.E.2d 168

199 Ga. 56

CULPEPPER et al. v. UNITED STATES FIDELITY & GUARANTY CO. et al.

No. 15045.

Supreme Court of Georgia

January 5, 1945

Rehearing Denied Feb. 9, 1945.

Further Rehearing Denied March 8, 1945.

Certified Questions from Court of Appeals.

Syllabus by the Court.

1. A deputy sheriff while proceeding en route to serve a jury summons is acting in his official capacity.

2. A cause of action against a deputy sheriff when sued on his official bond, together with his surety thereon, is shown only if the harmful act was done by virtue of or under color of office. No liability thereon attaches for personal malfeasance of the officer, although done when en route to serve a jury summons.

3. Where the officer while en route to the place where he expected to serve the summons violated the traffic regulations of the city and laws of this State with reference to speed, and negligently ran his car against a pedestrian who was crossing the street, thereby killing her, he and the surety on his official bond are not by reason of such facts liable for a breach thereof.

The Court of Appeals certified the following questions:

'1. Where a deputy sheriff of Bibb County, Georgia, was operating an automobile on a public highway in the county for the purpose of serving a summons on a person who had been drawn as a juror by the judge of the superior court of that county; and the deputy, while driving through the city of Macon, en route to the place where he expected to serve the summons, violated an ordinance of the city by driving the car at a speed greater than 25 miles an hour, and violated the laws of Georgia by operating the car on a public highway at a greater rate of speed than 55 miles per hour, and negligently ran his car against a pedestrian who was crossing a street in said city, thereby killing her, was the deputy sheriff, while so proceeding on his route to serve the summons, acting in his official capacity as deputy sheriff of Bibb County?

'2. If the Supreme Court should answer the first question in the affirmative, then further instruction is desired as to whether a petition disclosing the facts above enumerated states a cause of action against the deputy sheriff, and the sureties on his official bond for a breach thereof?'

Daisy L. Churchwell, of Macon, and Chas. G. Bruce, of Atlanta, for plaintiffs in error.

Turpin & Lane, Hall & Bloch, and Ellsworth Hall, Jr., all of Macon, for defendants in error.

GRICE Justice.

The first question propounded is answered in the affirmative. A deputy sheriff while proceeding en route to serve a jury summons is acting in his official capacity of deputy sheriff.'

The word 'so' in the latter part of the interrogatory whether used to point out the geography of his route, or the manner in which the officer was performing his duties, can not alter the fact that he was then and there engaged in official business. Code, §§ 59-206, 59-701.

2, 3. As we interpret the second inquiry from the Court of Appeals, it does not involve the question, whether or not in a suit against the deputy sheriff alone the petition, disclosing the facts above enumerated, showed him liable for a tort, but whether such facts made him as an officer, and his sureties, liable for a breach of his official bond. The answer to the first question propounded does not furnish the solution to the second one. The deputy's liability under the circumstances mentioned, when sued on his official bond, does not depend upon whether the injury inflicted by him on a third person was done while he was proceeding on his route to serve a jury summons, and therefore while he was acting in his official capacity, but rather, was his act, from which injury resulted, done either while acting by virtue of his office or under color of his office?

The law demands that sheriffs must take from their deputies bonds with sureties. Code, § 24-2811. It is true that the statute does not prescribe any condition for the violation of which the principal and surety thereon would become liable, but there is a statutory requirement that all official bonds must be 'conditioned, in all cases in which a different condition is not prescribed, upon the faithful discharge of the duties of the office by the officer during the time he continues therein or discharges any of the duties thereof.' § 89-402. The bond given by the deputy sheriff is an official bond, and there being nothing in the law requiring it which prescribes a different condition, it was properly conditioned faithfully to discharge the duties of the office. Citizens' Bank v. American Surety Co., 174 Ga. 852, 857, 164 S.E. 817. Every official bond is obligatory...