Hawkins v. National Sur. Corp.

• Decision Date: 16 October 1940
• Docket Number: 28441.
• Citation: 11 S.E.2d 250,63 Ga.App. 367
• Parties: HAWKINS v. NATIONAL SURETY CORPORATION et al.
• Court: Georgia Court of Appeals

11 S.E.2d 250

63 Ga.App. 367

HAWKINS v. NATIONAL SURETY CORPORATION et al.

No. 28441.

Court of Appeals of Georgia, Division No. 2.

October 16, 1940

Hamilton Kimzey and Herbert B. Kimzey, both of Cornelia, for plaintiff in error.

J E. Frankum, of Clarkesville, and Kelley & Brannon, of Gainesville, for defendants in error.

SUTTON Judge.

Mrs Ida Hawkins brought an action against I. L. Lawson and National Surety Corporation, as surety on his bond as sheriff of Hall County, Georgia, to recover damages for the homicide of

her husband by two of his deputies. The petition alleged that I. L. Lawson was the duly elected sheriff of Hall County, Georgia, and as such gave an official bond on which the defendant corporation, as successor to National Surety Company, was surety; that acting under color of and by virtue of his office as sheriff he appointed Lee Land and J. C. Smith deputy sheriffs, and that they were so acting at the time of the wrong complained of; that on November 17 1935, deputy sheriff J. C. Smith, acting under color of his office and by virtue of his office as deputy sheriff of Hall County, Georgia, summoned deputy sheriff Lee Land to go with him to investigate a report as to certain property having been stolen in Hall County, Georgia, to locate the same and to arrest the guilty parties if apprehended; that acting under color of his office and by virtue thereof they drove to Lula, Georgia, and seeing plaintiff's husband in an automobile being driven by their son, Joe Hawkins, followed the car to their house with the intention of searching it for stolen property and liquor and to arrest him if found; that when the car occupied by Jerry Hawkins stopped in the back yard of his home the deputies ran their car with considerable force into the car in which he was riding; that there were no stolen goods or intoxicating liquor or illegal property in the automobile owned and occupied by him, and neither he nor Joe Hawkins had committed any crime in the officers' presence or otherwise and they were not trying to escape, and neither of the deputies had any warrant or other legal process directed against Jerry Hawkins or Joe Hawkins or against the automobile occupied by them; that said deputies, acting under color of and by virtue of their office as deputy sheriffs of Hall County, Georgia, attempted to and did illegally search the automobile for intoxicating liquor and stolen property without any warrant or authority to do so. The petition then alleges, in substance, that the deputies committed an assault upon them, and that J. C. Smith, acting under color of and by virtue of his office, shot Jerry Hawkins in his left breast, and that in a few days thereafter he died from his wounds; that her husband was at the time more than 67 years of age, unarmed and crippled, which facts were well known to the deputies at the time they shot and killed him while searching for intoxicating liquors and stolen property, and that the acts complained of were committed by them under color of and by virtue of their office and constituted a breach of the conditions of the sheriff's bond, a copy of which was attached to the petition and the condition of which was that "should he, the said Irvin L. Lawson faithfully perform all and singular his duties as sheriff of said county during the term for which he has been elected, by himself, his deputies or jailors, and upon the terms required by law, then the above bond is to be void; else to be of full force and effect," the bond being signed by I. L. Lawson as principal and National Surety Company as surety. It was alleged that the plaintiff married Jerry Hawkins on November 18, 1891, and lived with him as husband and wife until his death on November 25, 1935, by reason of the wrongs complained of; that he earned, by means stated, $1,400 or more per year, and was, at the time of the wrongs complained of, in good health and had a life expectancy of more than 10 years, and she alleged that she had been injured and damaged in the sum of $10,000, for which judgment was prayed. The defendants filed general and special demurrers, which were overruled, and no exception was taken by the defendants. The defendants answered, admitting the jurisdiction of the court, but denied liability. They admitted that I. L. Lawson was the duly elected sheriff of Hall County and that he qualified by giving the bond required by law; that it was executed by him as principal and National Surety Company as surety, and that National Surety Corporation, as successor, assumed the liability thereunder; that at the time of the acts complained of J. C. Smith and Lee Land were duly appointed, qualified and acting deputy sheriffs of Hall County, Georgia, and, on information and belief, alleged that they were called to aid in investigating a robbery which had been committed in Habersham County, Georgia. They admitted that the deputies drove the automobile occupied by them into the yard of Jerry Hawkins after the car occupied by him had entered the yard; that neither of the deputies had a warrant for Jerry Hawkins or Joe Hawkins, but the answer stated that for want of sufficient information the defendants could neither admit nor deny that any crime had been committed by Jerry Hawkins or Joe Hawkins. The defendants set up that Jerry Hawkins attempted to shoot J. C. Smith, and that two of his sons sought to shoot and kill the deputies, and that in what the latter did they acted in self-defense and for the protection of their own lives. They denied that the deputies were attempting to search the automobile of Jerry Hawkins. For lack of sufficient information other allegations of the petition were neither admitted nor denied.

After the introduction of evidence on behalf of the plaintiff, the court, on motion of the defendants, granted a nonsuit, and the exception here is to that judgment, the plaintiff in error contending that the evidence in support of the petition was sufficient to require the case to be submitted to the jury. The defendants in error, on the other hand, contend that the nonsuit was proper, in that the evidence shows that the deputies were acting as individuals and not in the prosecution of their official duty.

Without setting out all of the evidence, we think that there was sufficient testimony for the plaintiff, hereinafter referred to, from which the jury, in connection with the admissions of the answer of the defendants, would be authorized to find that at the time of the acts complained of J. C. Smith and Lee Land were acting under color of office as deputy sheriffs, and that in such capacity they inflicted, without legal cause and not in self-defense, wounds upon Jerry Hawkins which brought about his death. It is shown by the record that they followed the car of Jerry Hawkins into his back yard; that an affray ensued, which the jury could find was produced entirely by the deputies, and that Jerry Hawkins was shot by both the...