Walker v. Whittle

• Decision Date: 06 March 1951
• Docket Number: No. 33273,No. 2,33273,2
• Citation: 83 Ga.App. 445,64 S.E.2d 87
• Parties: WALKER v. WHITTLE et al
• Court: Georgia Court of Appeals

Page 87

64 S.E.2d 87

83 Ga.App. 445

WALKER v. WHITTLE et al.

No. 33273.

Court of Appeals of Georgia, Division No. 2.

March 6, 1951.

Syllabus by the Court.

1. The right of the people to be secure in their persons, houses, papers, and effects includes the right of privacy, and is a natural right guaranteed by the constitution and laws of this State. Where such right is wilfully and intentionally violated with resulting damage to the plaintiff, a cause of action accrues.

2. (a) Where a wrongful act is committed under color of his office by a public officer, who is under bond, an action may be maintained against such officer individually for the wrongful act, or he may be sued individually directly upon the bond, or he may be sued jointly with the surety directly upon the bond. Where, however, suit is brought directly upon the bond against such officer or such officer and his surety, it is an action ex contractu, and, although the language of the petition alleges the commission of the wrongful act, this is simply for the purpose of showing the breach of the contract of suretyship, and the action is not by such allegations converted into an action ex delicto.

(b) A mere communication made by the sheriff of one county to the sheriff of another county requesting the arrest of a named person is not sufficient ground upon which to predicate a suit against the sheriff making such request where it appears that at the time the arrest was made no warrant for the arrest of such person was in existence, since the law makes provision for the arresting officer to first obtain a warrant, and where it does not appear that the sheriff making such request himself did or counseled any wrongful act on the part of such officer or should have reasonaby foreseen that an illegal arrest would in fact be made.

(c) Causes of action ex contractu and ex delicto may not be joined in the same suit.

3. Where an action is brought against two or more co-defendants in a county in which only one is a resident or has a place of doing business, and it appears that as to that defendant no cause of action is set out, the court is without jurisdiction of the remaining defendants.

Mrs. Robert H. Walker filed in the Superior Court of Johnson County, Georgia, an action against M. Gary Whittle, as sheriff of Richmond County, Georgia, in his representative capacity, the American Surety Company of New York, as surety on his official bond, John B. Brooks, as sheriff of Jackson County, Georgia, in his representative capacity, and the United States Fidelity & Guaranty Company, as surety on his official bond, which surety company had an agent in Johnson County upon whom service might be made, the petition alleging the following: On or about December 15, 1949, the said Whittle, acting by and through his deputies and agents as sheriff of Richmond County, Georgia, and under color of his office, received a communication from the office of the said sheriff Brooks of Jackson County, Georgia, it being a request that Robert H. Walker be arrested and placed in jail, and having been made under the authority of the said sheriff Brooks, as such sheriff and under color of his office, and who was as such sheriff responsible for sending such communication to the said sheriff of Richmond County, Georgia, and for the acts of the said sheriff hereinafter set forth. At the time of making such request no warrant was furnished the said Whittle or his deputies. On the said date the plaintiff and her husband, Robert H. Walker, resided at 2607 McKibben Street in the City of Augusta, Richmond County, Georgia, and at no time had her husband ever committed any crime or misdemeanor in Jackson County, Georgia, no criminal warrant had ever been issued for him in such county, and the sheriff of Jackson County had no process of any kind against him, and neither did the sheriff of Richmond County have any lawful process or warrant against him. During the nighttime and in the early hours of December 16, 1949, and at about 1 o'clock a. m., several deputy sheriffs of Richmond County, whose names are unknown to the plaintiff but well known to the defendant Whittle, and acting by and under his authority, and accompanied by military policemen and city policemen, whose names are unknown to the plaintiff but well known to the said Whittle and his deputies, and with two automobiles and in such fashion as to alarm and awaken the people in the neighborhood, came to the home of the plaintiff and peremptorily invaded her household without any right or authority and took physical possession and control of her husband, and without offering him an opportunity to confer with counsel or to arrange bond placed him inside the Richmond County jail, where they held him until approximately 11 o'clock a. m. on December 16, 1949.

In committing such acts the rights of the plaintiff under the Constitution of the United States, Amend. 5, Code Ann.Supp. § 1-804, and under the constitution of this State, art. 1, § 1, par. 16, Code Anno. Supp. § 2-116, to be secure in her person and house against unreasonable searches and seizures and against being subjected to arrest in a criminal case except upon probable cause supported by oath or affirmation, particularly describing the place to be searched and person to be seized, were violated, and her right of privacy was violated, and the said acts constituted a wilful and positive tort against her. The said deputy sheriffs and agents of the said Whittle, as sheriff of Richmond County, were acting under color of their offices as such deputies of the said sheriff, and were acting by virtue of their said offices in arresting and imprisoning the plaintiff's husband. When the plaintiff was finally able to communicate with an attorney the sheriff's deputies dismissed her husband and turned him out of the Richmond County jail, stating that there was a mix-up and a case of mistaken identity and that the wrong man had been arrested. The plaintiff brings this action against each of the two sheriffs, as aforesaid, and each of the sureties on their said bonds because: (a) The said invasion of her home under the circumstances was a violation of her rights under the Federal and State constitutions to be secure in her person and house against unreasonable searches and seizures. (b) The said invasion of her home under the circumstances was a violation of her rights under the Federal and State constitutions to be secure against arrest, as to herself and family, except upon probable cause supported by oath or affirmation, particularly describing the person and place to be seized and searched. (c) The said invasion of her home under the circumstances was a violation of her right of privacy as a citizen of Georgia and of the United States. (d) The said invasion of her home under the circumstances was a violation of her right to personal security as a citizen of Georgia and of the United States. (e) The said invasion of her home under the circumstances constituted the said invaders as trespassers, and the said acts constitute a trespass against the plaintiff and her home and person. (f) The said invasion of her home under the circumstances was a positive and wilful tort and wrong on the part of the invaders. (g) The manner of the invasion of her home and personal security and privacy, in coming in the nighttime with large numbers of officers of the law and two automobiles, was in such manner as to call the attention of the neighbors to the said illegal invasion of the plaintiff's home, and was in such fashion as to cause the neighbors to know that the plaintiff's home was invaded in the late hours of the night and that her husband was being placed under arrest in such fashion as to suggest that he was a dangerous criminal and desperado, and constituted an aggravation of the offense so as to subject the defendant to payment of punitive damages, and the same was done in a wilful and wanton manner with a conscious indifference to consequences. (h) The said invasion of her home and personal privacy and security greatly shocked and frightened the plaintiff. The conduct of the said officers was in a wilful and wanton manner, and with a conscious indifference to consequences. No effort of any kind was made to determine whether the plaintiff's husband was wanted for any crime or misdemeanor, and there was nothing connecting him or identifying him with any crime or misdemeanor which afforded the slightest pretext or excuse for the illegal arrest and detention under the circumstances aforesaid. The said defendants are subject to payment of reasonable counsel's...