Irwin v. Arrendale, 43127

• Decision Date: 16 November 1967
• Docket Number: No. 1,No. 43127,43127,1
• Citation: 117 Ga.App. 1,159 S.E.2d 719
• Parties: H. A. IRWIN v. J. J. ARRENDALE
• Court: Georgia Court of Appeals

Page 719

159 S.E.2d 719

117 Ga.App. 1

H. A. IRWIN v. J. J. ARRENDALE.

No. 43127.

Court of Appeals of Georgia, Division No. 1.

Nov. 16, 1967.

Rehearing Denied Dec. 1, 1967.

Hal Irwin, pro se.

Arthur K. Bolton, Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Mathew Robins, Deputy Asst. Atty. Gen., G. Ernest Tidwell, Executive Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Judge.

H. A. Irwin, a prisoner confined at the State Prison at Reidsville, brought suit in propria persona against Dr. J. J. Arrendale, the medical director of the prison, seeking to recover damages for assault and battery and for injuries allegedly received when he was x-rayed without his consent. Defendant demurred generally to the petition, contending that the suit was one against the State without its consent and that no negligence was alleged against Dr. Arrendale proximately causing the injuries complained of. From the sustaining of the general demurrer and the dismissal of the petition plaintiff appeals. Held:

1. In filing his defensive pleadings within the time prescribed by law, the defendant does not waive his right to assert that the petition sets forth no cause of action against him by filing his answer to the merits prior to filing his general demurrer. See Code Ann. §§ 81-301, 81-302; Rountree v. Finch, 120 Ga. 743, 48 S.E. 132; O'Connor v. Brucker, 117 Ga. 451, 43 S.E. 731; Code Ann. §§ 110-702, 110-704. Compare CPA § 12(h)(2) (Code Ann. § 81A-112(h)(2)).

2. Any suit against an officer or agent of the State, in his official capacity, in which a judgment can be rendered controlling the action or property of the State in a manner not prescribed by statute, is a suit against the State and cannot be maintained without its consent. Roberts v. Barwick, 187 Ga. 691(2), 1 S.E.2d 713. However, '(a) suit against a State officer or agent as an individual is not one against the State. Consequently, where State officers or agents are sued personally, the suit is gnerally maintainable, whether it be at law or in equity, and whether it be to recover property wrongfully withheld from the true owner, or to recover damages for a breach of contract or in tort for an injury to person or property * * *. This is true even though the State officers or agents, when thus sued personally, may seek to claim immunity from suit or an absence of liability because of alleged ownership by the State of the property involved, or because they may claim a performance of the questioned acts as officials acting under legal authority.' Florida State Hospital for the Insane v. Durham Iron Co., 194 Ga. 350, 353, 21 S.E.2d 216, 218. For cases where suits have been held maintainable against various public officers and employees over the contention that the suit was in reality one against the State without her consent, see Dennison Mfg. Co. v. Wright, 156 Ga. 789, 120 S.E. 120 (suit attacking a license or occupation tax act and seeking to recover from the Comptroller General, as damages, taxes paid under protest); Holcombe v. Georgia Milk Producers Confed., 188 Ga. 358, 3 S.E.2d 705 and Fleisher v. Duncan, 195 Ga. 309, 24 S.E.2d 15 (injunction suits against members of the milk-control board attacking the milk-control act); Cannon v. Montgomery, 184 Ga. 588, 192 S.E. 206 (suit against employee of the State Department of Game and Fish to enjoin him from interfering with property claimed by both plaintiff and the Department); Irwin v. Crawford, 210 Ga. 222, 78 S.E.2d 609 (suit to enjoin members of a county board of education and school superintendent from consolidating high-school grades of two schools); Georgia Pub. Serv. Comm. v. Atlanta Gas Light Co., 205 Ga. 863, 55 S.E.2d 618 (suit by public utility to enjoin the Public Service Commission and its members from enforcing commission orders); Patten v. Miller, 190 Ga. 105(6), 8 S.E.2d 776 (suit to enjoin claimant to office from interfering with another claimant to office); Stanley v. Sims, 185 Ga. 518, 195 S.E. 439 (mandamus to compel chairman and secretary of the Department of Industrial Relations to pay the director his salary); Undercofler v. Eastern Air Lines, Inc., 221 Ga. 824, 147 S.E.2d 436 (suit against 'Hiram K. Undercofler, who is State Revenue Commissioner * * * and E. J. Olmstead, who is Director of the Sales and Use Tax Unit' seeking injunctive and declaratory relief against sales and use tax assessments); Undercofler v. Seaboard Air Line R.R. Co., 222 Ga. 822(1), 152 S.E.2d 878 (injunction suit against Hiram K. Undercofler, State Revenue Commissioner, claiming discrimination and disproportionate assessment of its property for ad valorem taxes); Moore v. Robinson, 206 Ga. 27(2), 55 S.E.2d 711 (suit to enjoin members of Georgia Board of Chiropractic Examiners, officially and individually, from issuing licenses to unqualified applicants); Murdock v. Perkins, 219 Ga. 756, 135 S.E.2d 869 (suit against members of the State Board of Education, officially and individually, attacking a decision and order of the Board).

3. A jailer or other officer owes to a prisoner in his care the duty to exercise ordinary diligence to keep him safe and free from harm, to render him medical aid when necessary, and to treat him humanely and refrain from oppressing him; and where the officer is negligent in the care and custody of his prisoner or fails in the performance of his duty to him, and as a result the prisoner is injured or meets his death, the officer is personally liable. Kendrick v. Adamson, 51 Ga.App. 402, 180 S.E. 647; Thomas v. Williams, 105 Ga.App. 321, 124 S.E.2d 409. And see Constitution, Article I, Sec. I, Par. IX (Code Ann. § 2-109), prohibiting the abuse of any person while he is being arrested, or while he is under arrest, or in prison; Code Ann. § 77-104, providing that no jailer shall be guilty of wilful inhumanity to or oppression of any prisoner under his care and custody; Code Ann. § 77-307(b), providing that the State Board of Corrections shall adopt rules governing, inter alia, the treatment and hospitalization of prisoners; Code Ann. § 77-308, providing that rules and regulations adopted by the State Board of Corrections 'shall be reasonable;' Code Ann. § 77-309, declaring that it shall be the responsibility of the governmental unit, subdivision or agency having the physical custody of a prisoner to furnish him with food, clothing and medical and hospital attention; Code Ann. § 77-316(c), providing that the bonds required of chief custodial officers of penal institutions and other officials, employees and agents of the State Board of Corrections shall be liable for breach of condition by deputies, agents, or subordinates of the officer and are governed by Code Chapter 89-4 which provides, inter alia, that such bonds are obligatory on the principal and sureties 'for the use and benefit of every person who is injured, either by any wrongful act committed under color of his office or by his failure to perform, or by the improper or neglectful performance of those duties imposed by law' (Code § 89-418(4)), that 'smart money' may be awarded where the officer has not acted in good faith (Code § 89-421), and that the officer himself is still liable when the penalty is exhausted or where he has not given bond (Code § 89-423); Chadwick v. Stewart, 94 Ga.App. 329, 94 S.E.2d 502, holding that a deputy sheriff, while transporting a prisoner, owes the prisoner the duty to exercise ordinary care while driving the vehicle in which the prisoner is required to ride; Dade Coal Co. v. Haslett, 83 Ga. 549, 10 S.E. 435, holding that a felon may maintain an action for personal injuries suffered while in confinement as the result of the negligence of the company to which he was leased; Chattahoochee Brick Co. v. Braswell, 92 Ga. 631, 18 S.E. 1015, holding that a convict may recover, from a corporation to which he was leased, for personal injuries received when a guard employed by the corporation ordered him to go into a place where explosives were being used; Smith v. City of Rome, 16 Ga.App. 96, 84 S.E. 734, reversing a judgment of nonsuit in a damage suit by a prisoner in the chain-gang who was injured when compelled to hold a defective rock drill while two inexperienced fellow-convicts struck upon it with hammers; Powell v. Fidelity & Dep. Co., 45 Ga.App. 88, 163 S.E. 239, holding that under Article I, Section I, Para. IX of the Constitution (Code Ann. § 2-109), it is the duty of an officer holding a person in his custody to refrain from unlawfully assaulting or killing him; Cohen v. United States, 252 F.Supp. 679 (N.D.Ga.), holding that '(a)s the Federal Tort Claims Act results in liability 'if a private person would be liable to the claimant,' it appears that the standard of care due a prisoner under either the federal statute (fixing the duty of care owed by the Bureau of Prisons) or the (Georgia) rule is the same, namely, to exercise ordinary care for the prisoner's protection and to keep him safe and free from harm. * * *,' and pointing out that '(i)n Georgia, while the state retains immunity in such cases, the individual jailors may be personally liable, as well as their bondsmen.' See also Westbrook v. State, 133 Ga. 578, 66 S.E. 788, 26 L.R.A.,N.S., 591, holding that '(i)f the warden, or other officer, inflicts corporal punishment under circumstances which the law does not recognize as sufficient to justify, he invades the convict's right of personal security, and does so at his own peril.'

4. 'Under proper factual conditions and circumstances, actions against medical practitioners based on assault and battery for acts arising out of their professional conduct are recognized in Georgia. The relation of physician and patient is a consensual one, and a physician who undertakes to treat another without express or implied consent of the patient is guilty of at least a technical battery. An unauthorized and unprivileged contact by a doctor with his patient in...