Fidelity-Phenix Ins. Co. v. Mauldin

• Decision Date: 18 November 1970
• Docket Number: FIDELITY-PHENIX,45340,No. 1,Nos. 45339,s. 45339,1
• Citation: 179 S.E.2d 525,123 Ga.App. 108
• Court: Georgia Court of Appeals
• Parties: INSURANCE COMPANY et al. v. Jean J. MAULDIN. Jean J. MAULDIN v.INSURANCE COMPANY et al

Page 525

179 S.E.2d 525

123 Ga.App. 108

FIDELITY-PHENIX INSURANCE COMPANY et al. v. Jean J. MAULDIN.

Jean J. MAULDIN v. FIDELITY-PHENIX INSURANCE COMPANY et al.

Nos. 45339, 45340.

Court of Appeals of Georgia, Division No. 1.

Nov. 18, 1970.

Rehearing Denied Dec. 14, 1970.

Certiorari Denied Jan. 21, 1971.

Syllabus by the Court

1. The instant suit on a warden's bond was not barred by Code Ann. § 3-1004, imposing a 2 year statute of limitations for suits on personal injuries.

2. The remaining enumeration of errors are without merit.

3. In view of the rulings herein made, the cross appeal is not considered.

This case involves a suit by the widow of Wayne K. Mauldin against Fidelity-Phenix Insurance Company as surety on the bond of C. M. Caldwell, Warden of the Floyd County Public Works Camp. For the full statement of the pleadings in this case, see Fidelity-Phenix Ins. Co. v. Mauldin, 118 Ga.App. 401, 163 S.E.2d 834, in which we affirmed the denial of defendant's motion for summary judgment. After that judgment was rendered, Warden Caldwell intervened and the case proceeded to trial.

The jury at the trial returned a verdict for the plaintiff against both defendants in the amount of $10,000 and the court rendered judgment against both defendants in that amount. Subsequent thereto, the defendants filed their motions for new trial and the trial court later overruled such motions, as amended. In appealing to this court the appellants not only excepted to the court's adverse ruling on their motions for new trial, as amended, but also appealed from the court's adverse ruling on the motion that the statute of limitation barred recovery in the case.

Clary & Kent, Horace T. Clary, F. L. Salmon, Rome, for appellants.

Greene & Greene, William B. Greene, Cartersville, Wright, Walther & Morgan, Robert B. Walther, Rome, for appellee.

QUILLIAN, Judge.

The defendants contend that this action was brought for injuries to the person and having been commenced more than 2 years after the right accrued was barred by the statute. Code § 3-1004 as amended Ga.L.1964, p. 763; Ivester v. Southern R. Co., 61 Ga.App. 364, 365, 6 S.E.2d 214. The plaintiff urges that since the action was on the bond a longer limitation applies.

In Harris v. Black, 143 Ga. 497, 85 S.E. 742, the Supreme Court considered the question of whether a suit on a sheriff's bond under seal was subject to the 20-year limitation of § 4359 of the (1910) Code (now Code § 3-703), or whether a shorter limitation was applicable. The court discussed the fact that if the suit was against the sheriff individually, and not on the bond, depending on whether the action sounded in tort or contract (the underlying cause), then various limitations, such as what is now Code Ann. § 3-1004, might be applicable. The court then held: 'Under the statutes of this state and the former decisions of this court, a suit for a breach of the official bond of a sheriff, if brought within 20 years from the breach, will not be barred because an action sounding in tort or contract on account of his breach of duty, against the sheriff alone, not on the bond, might be barred.' Harris v. Black, 143 Ga. 497, 85 S.E. 742(5), supra.

The Court of Appeals in an apparent independent adjudication (since the Harris case, 143 Ga. 497, 85 S.E. 742, supra, was The Harris case, 143 Ga. 497, 85 S.E. 742, supra, approved unanimously in Slaton v. Morrison, 144 Ga. 471(2), 87 S.E. 390, is controlling here.

not cited) reached the same result in Powell v. Fidelity & Deposit Co. of Maryland, 48 Ga.App. 529(1), 173 S.E. 196 and held: 'A failure of a sheriff, by and through his deputy, to faithfully perform the duties of his office, although the act may give rise to a cause of action ex delicto, constitutes a breach of the official bond given by the sheriff for the faithful performance of the duties of the office, as required by Section 291 of the Civil Code of 1910. A right of action against the surety for the breach of the bond arises ex contractu. * * * The statute of limitations with respect to the time within which an action may be brought for the breach of a written contract applies to a suit to recover for the breach of the bond, and this limitation is not less than six years after the cause of action arose.'

The defendants rely on National Surety Corp. v. Boney, 215 Ga. 271, 110 S.E.2d 406, and Addington v. Ohio So. Express Inc., 118 Ga.App. 770, 165 S.E.2d 658. National Surety Corp. v. Boney, 215 Ga. 271, 110 S.E.2d 406, supra, does not require a different result since that case involved the construction of the language in the Act treating with jurisdiction of the Civil Court of Fulton County. In Addington v. Ohio So. Exp., Inc., 118 Ga.App. 770, 165 S.E.2d 658, supra, an action was brought against a motor common carrier and its liability insurer for damages for personal injuries. This court held that: 'While the 'cause of action' (or statement of a claim, as it is now called) is not on the tort, nevertheless 'the tort constitutes the real cause of action, and the liability of the insurance carrier on its policy, issued as required by law, is merely ancillary to that of the common carrier.' Maryland Cas. Co. v. Dobson, 57 Ga.App. 594, 595(2), 196 S.E. 300, 301. Hence, in the action based upon the insurance contract the statute of limitation commenced running at the time of the commission of the alleged tort, which is the basis of the insurer's contractual liability.' Here, while the obligation of a surety is accessory to that of his principal (Code § 103-102), still regardless of the underlying cause, the liability of the principal is predicated on the bond and not on a tort.

If there were any conflicts between those cases and Harris v. Black, 143 Ga. 497, 85 S.E. 742, supra, the rule which we must here apply is that: 'this court * * * as well as the Supreme Court is bound by the oldest unanimous decisions of the Supreme Court on any question decided unless and until that case is overruled, modified, distinguished or declared obited as authorized by law. Code § 6-1611. And, if there are two confliction decisions of the Supreme Court, neither of which is unanimous, this court will follow the older case.' State Highway Dept. v. Wilson, 98 Ga.App. 619, 621, 106 S.E.2d 544. See State Highway Dept. v. Blalock, 98 Ga.App. 630, 106 S.E.2d 552. Hence, the suit was not barred by statute of limitation.

2. In consideration of the remaining enumerations of error, the following rules regarding the provisions of Section 17 of the Appellate Practice Act as amended, (Code Ann. § 70-207; Ga.L.1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1072, 1078), should be noted.

The appellant must make a proper objection to a charge as given or to a request refused and state the grounds therefor; the mere exception to a numbered request fails to meet this requirement. U.S. Security Warehouse Inc. v. Tasty Sandwich Co., 115 Ga.App. 764(1), 156 S.E.2d 392; Reeves v. Morgan, 121 Ga.App. 481(8), 174 S.E.2d 460 (reversed on other grounds, Morgan v. Reeves, 226 Ga. 697, 177 S.E.2d 68). Review of a charge on appeal is limited strictly to the grounds of objection stated at the trial; if the exception actually made is not argued or insisted upon, it will be treated as abandoned. Black v....