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The opinion of the Court was delivered by'
Mr. Chief Justice Stabler.
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In each of these cases the appeal is from an order of Judge Sease overruling demurrers to the amended complaint. The several questions raised by the exceptions were fully considered by the Court below, and we think, for the reasons stated in the Circuit decree, were properly disposed of.
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The order, therefore, which will be reported, is affirmed.
Messrs. Justices Carter, Bonham, Baker and FishburnE concur.
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Case posture Posture Before SEASE, J., Lancaster, April, 1939. Affirmed.Action by C.E. Rutledge, as administrator of the estate of C.E. Rutledge, Jr., deceased, and by W. Steve Sowell, Jr., by and through his guardian ad litem , W. Steve Sowell, Sr., against L.G. Small and others, for death of intestate and injuries sustained by a minor as result of a collision between a motorcycle and an automobile driven by the named defendant. From orders overruling demurrers to amended complaints, defendants appeal.
The order of Judge Sease requested to be reported, follows:
The two above actions are identical as to the facts and times, except that in the Rutledge case death ensued and in the Sowell case there were serious bodily injuries. Both the death and injuries of the two children arose out of the same alleged negligent act of the defendants.
The plaintiffs in each case allege in detail that R.A. Blackmon is and was the sheriff of Lancaster County, and that L.G. Small is and was his duly appointed deputy sheriff, and the defendant, Glens Falls Indemnity Company, is the bondsman of the sheriff; that on the 15th day of April, 1937, two minor children were riding upon a motorcycle in the Town of Lancaster and as they passed from Gay Street into and upon Main Street of the said Town of Lancaster, there being at the intersection of these two streets what is commonly known as a stop light and said light showing green to the minors on the motorcycle; that when the two children neared the intersection of Main Street that the defendant, Small, running at a high and reckless rate of speed and disregarding the fact that the signal light was showing
red toward him, which signal indicated and required that he should stop, struck the motorcycle instantly killing the Rutledge child and seriously injuring young Sowell.
That, upon qualifying as sheriff of Lancaster County on December 11, 1934, the defendant, R.A. Blackmon, gave bond with the defendant, Glens Falls Indemnity Company, the condition of the said bond being: Now, the condition of the above obligation is such that if the above bound R. A. Blackmon shall well and truly perform the duties of said office as now or hereafter required by law, during the whole period he may continue in said office, then the above obligation to be void and of none effect, or else to remain in full force and virtue.
The bond was in force and effect at the time of the killing of young Rutledge and the injuring of young Sowell. The original complaint in each of the actions demanded actual and punitive damages. To these complaints the defendants, R.A. Blackmon and Glens Falls Indemnity Company, demurred. These demurrers as heard by Judge Gaston raised the issue as to the liability for punitive damages by either or both of the defendants. In passing upon these demurrers, Judge Gaston, after reciting the allegations of the complaint, says:
The right to sue the three Defendants in the same action is fixed by the Acts of 1935, Page 406, which now appears as Section 487 (Sub-division 8) of the Code. See 1936 Supplement to the Code of 1932. Under Section 3486 of the Code of 1932, the Sheriff may appoint one or more Deputies, and may take such bond and security from his Deputy as he deems necessary, but the Sheriff shall in all cases be answerable for a neglect of duty or misconduct in office of such Deputy. The form of the bond is fixed by Section 3045 of the Code of 1932, and the bond sued on in this case conforms thereto. The Complaint does not allege that L.G. Small as Deputy Sheriff executed a bond. This suit is on the bond executed by the Sheriff, which the Sheriff is required by law to furnish.
By the language of Section 3486 of the Code of 1932, the Sheriff shall in all cases be answerable for neglect of duty or misconduct in office of his Deputy. It is universally recognized and held by the Courts of the United States that the Sheriff is liable for the acts, defaults, torts, or other misconduct done or committed by his Deputy virtute officii , although some cases hold to the contrary as to acts chlore officii. Jentry v. Hunt , 2 McCord, 410; Teasdale v. Hart , 2 Bay, 173. The liability of a Sheriff for the acts of his Deputy extends to many matters, but all are confined to such acts which are performed in the sphere of office of the Deputy, and where the wrong committed by him is official, and not solely the personal act of the Deputy. It is unnecessary to enumerate all of the official acts of the Deputy, but the Sheriff's liability extends to acts of his Deputy for abuse of process, assaults committed while performing the duties of the office, failure to serve process, failure of Deputy to pay over money collected by him, a wrongful levy on or taking of property under color of legal process. Jentry v. Hunt , 2 McCord 410, and other similar official acts.
Punitive or exemplary damages may be awarded where it appears that the officer has acted maliciously and oppressively, but in the absence of proof of fraud, malice or other aggravating circumstances, the measure of recovery for a trespass is the actual damages sustained. Gilbert v. Rothe , 106 Neb. 549 , 184 N.W. 119 .
The case of Powell v. Fidelity Deposit Company of Maryland , 45 Ga. App. 88 , 163 S.E., 239 , sustains the right to recover against the Sheriff and his bondsman for the act of his Deputy, who had a prisoner under arrest, in a suit for damages for killing of the prisoner by the Deputy unlawfully and without provocation. To the same effect is the case of Richards v. American Surety Company of New York [ 48 Ga. App. 102 ], 171 S.E., 924. (Ga., Dec. 1, 1933.) Also see Kendrick v. Adamson, Sheriff
[ 51 Ga. App. 402 ], 180 S.E. 647. (Ga., June 15, 1935.)
Judge Gaston disallowed punitive damages, holding that exemplary or punitive damages are not recoverable against sureties and ordered all allegations as to punitive damages stricken from the complaint, with leave to the plaintiffs to amend. The amendments to the complaint were allowed. The defendants, Glens Falls Indemnity Company and R. A. Blackmon, the sheriff, now comes before me and interpose further and additional demurrers. The demurrer of the indemnity company is:
(1) That the amended complaint fails to allege any act or omission by the defendant, R.A. Blackmon, as sheriff, which constitutes a failure on the part of the said R.A. Blackmon to well and truly perform the duties of the office of sheriff of Lancaster County as required by law, and that this defendant was liable only for the failure of Blackmon to well and truly perform the duties of the office of sheriff of Lancaster County and not for any acts or ommissions of the deputy sheriff.
(2) That the acts and delicts alleged to have been committed by the defendant, L.G. Small, as deputy sheriff, constitute mere negligence on the part of the said Small and did not constitute neglect of duty or misconduct in office of the said deputy, and that Blackmon as sheriff was answerable under the statute of the State for only such acts or omissions on the part of his deputy as constitute neglect of duty or misconduct in office by such deputy.
(3) That the amended complaint does not contain any allegations as to the nature of the alleged lawful duty which the defendant, L.G. Small, was engaged in as deputy sheriff at the time and place complained of, but merely alleges that the said L.G. Small was engaged in his lawful duty as deputy sheriff, which allegation is a mere conclusion of law and not a statement of fact; the sheriff is answerable only for such acts or omissions of his deputy as occurred in the performance of some official duty by such deputy.
The defendant, R.A. Blackmon, also demurs on two grounds, contending that the facts alleged in the complaint
are not sufficient to constitute a cause of action against him. The grounds of the demurrer are:
(1) That the acts and delicts alleged to have been committed by the defendant, Small, as deputy sheriff constituted mere negligence, and did not constitute neglect of duty or misconduct in office by such deputy, and that the sheriff was not answerable for such neglect; and
(2) That the complaint did not contain any allegation as to the nature of the lawful act which the defendant, L.G. Small, was engaged in as deputy sheriff at the time complained of, but merely alleges that he was engaged in a lawful duty as deputy sheriff, which allegation is a mere conclusion of law and not a statement of fact.
Under the Act of 287, appearing at page 406 in the Acts of 1935, and appearing as Section 487, Subdivision (8), of the 1936 Supp. of the Code, it is provided: In all cases where it is now or hereafter provided by law that an indemnity bond or insurance must be given by a principal for the performance of contract or as insurance against personal injury founded upon tort, the principal and his surety, whether on bond or insurance, may be joined in the same action and their liability shall be joint and concurrent.
Disposing first of the grounds of the demurrers, in which it is contended that the amended complaint does not contain any allegation as to the nature of the alleged lawful duty which the defendant, L.G. Small, was engaged in as deputy sheriff at the time of the injuries, Paragraph 7 of the amended complaint is as follows: 7. That at the time of the striking of the motorcycle by the car driven by L.G. Small, Deputy Sheriff, in the manner aforesaid, the said L.G. Small was engaged in a lawful duty as Deputy Sheriff, but Plaintiff alleges that he was performing said lawful duties in an unlawful, negligent, and careless manner, in the particulars heretofore and hereinafter set forth.
I do not think that the allegations of this paragraph are subject to demurrer. They do not state any conclusion of
law, but are, on the contrary, a statement of fact. The defendant's remedy, if any, was to make this paragraph more definite and certain. No such motion was made.
The bond of the sheriff requires him to well and truly perform his duties of his office. He has a right to appoint a deputy, and Section 3486 of the Code of 1932 makes the sheriff answerable for any neglect of duty or misconduct in office of his deputy. We think the law is firmly settled that under the facts as alleged in the complaint, the sheriff would be liable for the acts complained of as alleged to have been committed by L.G. Small, deputy sheriff. In addition to the authorities cited by Judge Gaston attention is called to the cases of Geros v. Harries , 65 Utah, 227 , 236 P., 220 , 39 A.L.R., at page 1297, with notes which follow; Manwaring v. Geisler , 191 Ky., 532 , 230 S.W., 918 , 18 A.L.A., at page 192; United States F. G. Co. v. Samuels , 116 Ohio St., 586 , 157 N.E., 325 , and 53 A.L.R., 36.
Quoting from Teasdale v. Hart , 2 Bay, 173, 175. In this case the deputy took a worthless bond and the sheriff was sued. The Courts said: The law, they said, was very clear, and well laid down in the case they quoted, on the trial of Teasdale v. Kennedy. Every sheriff was liable for the acts of all his officers, and all persons acting under him in every subordinate capacity; and they on their parts, are bound to conduct themselves in the like manner as the sheriff himself ought to do, if he was present; and he is not to be let off, on account of the blunders, misconduct, or errors of any of his inferior agents.
See also: Carlin v. Kerr , 2 Bay, 112; Abercrombie v. Marshall , 2 Bay, 90; Sutton v. Williams , 199 N.C. 546 , 155 S.E., 160 .
The liability of a sheriff or constable for the official acts of a deputy is not based upon the doctrine of respondeat superior, but on the fact that the deputy is his representative for whose acts he is liable as if they had
been done by himself. Rich v. Graybar Electric Company , 125 Tex., 470 , 84 S.W.2d 708 , 102 A.L.R., 171.
See also: Dillon County v. Lane , 114 S.C. 494 , 104 S.E., 184 , 22 R.C.L., 586, 24 R.C.L., 981.
It is, therefore, ordered, that the demurrers of the plaintiffs be overruled and denied and that the cause proceed to trial and judgment; and that the defendants herein have twenty days from the filing of this order within which to file their answer. Source: CourtListener
