Powell v. Fid. & Deposit Co. Of Md., 21674.

• Decision Date: 29 February 1932
• Docket Number: No. 21674.,21674.
• Citation: 163 S.E. 239,45 Ga.App. 88
• Parties: POWELL et al. v. FIDELITY & DEPOSIT CO. OF MARYLAND.
• Court: Georgia Court of Appeals

45 Ga.App. 88

163 S.E. 239

POWELL et al.

v.FIDELITY & DEPOSIT CO. OF MARYLAND.

No. 21674.

Court of Appeals of Georgia,

Division No. 2.

Feb. 29, 1932.

Syllabus by Editorial Staff.

Error from Superior Court, Floyd County; James Maddox, Judge.

Suit by Conrad Powell and others, by next friend, against the Fidelity & Deposit Company of Maryland. Judgment for defendant, and plaintiffs bring error.

Reversed.

Porter & Mebane, of Rome, for plaintiffs in error.

Maddox, Matthews & Owens, of Rome, and Rosser & Shaw, of La Fayette, for defendant in error.

Syllabus Opinion by the Court.

STEPHENS, J.

1. Te act of an arresting officer, in holding in custody a person whom he has arrested for a violation of law, is an act done by virtue of his office. It is the duty of an arresting officer, who has a person under arrest for a violation of law, to refrain from unlawfully assaulting or killing the prisoner. Civil Code 1910, § 6365.

2. Where an arresting officer, who has a prisoner under arrest, kills him unlawfully and without provocation, he commits a breach of official duty, and there is a liability upon his official bond, to the statutory beneficiary of the dead man for damages for the homicide.

3. Where One acts as a deputy sheriff with the consent, approval, and acquiescence of the sheriff, who holds him: out to the public as his deputy, his acts as such deputy, although he was not appointed in writing as required by law and did not take the oath of office required of a deputy sheriff and did not otherwise legally qualify as a deputy sheriff, are acts of a deputy sheriff de facto, and possess the same legality as the acts of a legally appointed deputy sheriff who is an officer de jure. Matthis v. Pollard, 3 Ga. 1; Jewell v. Gilbert, 64 N. H. 13, 5 A. 80, 10 Am. St. Rep. 357; Stephens v. State, 106 Ga. 116, 32 S. E. 13; Mathis v. Carpenter, 95 Ala. 156, 10 So. 341, 36 Am. St. Rep. 187; Pickens v. McNutt, 12 Smedes & M. (Miss.) 651: Bosley v. Farquar, 2 Blackf. (Ind.) 61, 24 R. C. L. 981, 982. See 277, Political Code 1910 (Civil Code). This is true notwithstanding the deputy, in acting Without having been appointed in writing, violates a penal statute. Penal Code 1910, §§ 337, 338. In McCalla v. Verdell, 122 Ga. 801, 50 S. E. 943, Georgia, etc., R. Co. v. Anderson, 12 Ga. App. 117, 76 S. E. 1056, Hartshorn v. Bank of Gough, 15 Ga. App. 167 (1), 82 S. E. 805, and United States Motor Co. v. Baughman Automobile Co., 16 Ga. App. 783, 86 S. E. 464, where it was held that an act performed by a sheriff or a deputy sheriff was void, it did not appear that the act was that of a de facto officer. See, also, Cooper v. Ricketson, 14 Ga. App. 63, 80 S. E. 217.

4. The official bond given by a sheriff, conditioned for the faithful performance of the duties of his office, obligates the surety thereon for any...