In this civil action against a public officer for acts done under color of office, there was no evidence that such actions amounted to wrongfulness, wilfulness, bad faith, oppression, corruption, fraud, deceit, malice, etc.; therefore, the denial of the defendant's motion for judgment n.o.v. was error.

ARGUED MARCH 5, 1974 — DECIDED APRIL 23, 1974 — REHEARING DENIED MAY 13, 1974 — CERT. APPLIED FOR.

On March 7, 1968, the plaintiff, Joseph G. Maddox, was appointed as a member of the State of Georgia Board of Pardons and Paroles to fill an unexpired term. On April 10, 1969, Joseph G. Maddox was appointed to a full seven-year term to the State Board of Pardons and Paroles by the Honorable Lester Maddox, said appointment being confirmed by the Senate on June 12, 1969. On the morning of the swearing in of Joseph G. Maddox for the full term above-mentioned, Governor Lester Maddox had Joseph G. Maddox sign an undated resignation to be kept by the Governor. On January 6, 1971, Governor Lester Maddox accepted the resignation of Joseph G. Maddox and sent him a Western Union Telefax signed by the Governor notifying him that he was accepting his resignation. Joseph G. Maddox subsequently told newspaper reporters at a press conference that he intended to continue his duties as a member of the Board of Pardons and Paroles and would disregard the action of the Governor.

Upon learning that the plaintiff, Joseph G. Maddox, intended to disregard the acceptance of his resignation and to continue to perform his duties as a member of the said board, Governor Maddox instructed Frank Blankenship, Assistant Attorney General assigned to the Governor as legal advisor, to go to the chairman of the Board of Pardons and Paroles to have him change all of the locks on the doors to the board in order to secure the confidentiality of the files of said board. Frank Blankenship conveyed the Governor's instructions to the defendant, J. O. Partain, Chairman of the Board of Pardons and Paroles.

The defendant, J. O. Partain, Chairman of the Board of Pardons and Paroles, then passed on the Governor's instructions to an employee of the Board of Pardons and Paroles, instructing said employee to advise the office manager that Governor Maddox directed that the locks be changed on the offices of the Board of Pardons and Paroles, and the locks were changed. On January 7, 1971, when the plaintiff appeared at the board offices, he was allowed entry only to retrieve his personal effects.

On January 13, 1971, six days after the locks were changed, Joseph G. Maddox filed the instant suit in the Superior Court of Cobb County against J. O. Partain, as Chairman of the Board of Pardons and Paroles and individually, seeking to enjoin the defendant from interfering with his performance of his duties and from preventing him from entering his office, and seeking actual damages as well as $100,000 in punitive damages for the defendant's allegedly interfering with the plaintiff's performance of his duties. At 4:55 p. m., January 13, 1971, the Honorable Luther C. Hames, Jr., Presiding Judge of the Superior Court of Cobb County, signed a temporary restraining order enjoining the defendant from interfering with the plaintiff's right to pursue his duties and ordering the defendant to allow the plaintiff to enter his office for those purposes, and setting the case down for a show-cause hearing on January 19, 1971. Said temporary restraining order was obtained ex parte and was served upon the defendant on January 14, 1971. On January 14, 1971, after newly assuming the office of Governor of the State of Georgia, the Honorable Jimmy Carter declared the office of Joseph G. Maddox vacant, and officially appointed Richard A. Chappel as a member of the Board of Pardons and Paroles, replacing the said Joseph G. Maddox.

On January 19, 1971, Arthur K. Bolton, Attorney General of the State of Georgia, appeared in behalf of the defendant, and, in addition to denying the claims made by the plaintiff, sought quo warranto, seeking a declaration that the office be declared vacant. On January 20, 1971, the Honorable Luther C. Hames, Jr., entered an order which in essence held that whether or not the resignation of Joseph G. Maddox was valid was an issue to be determined by the jury, and that the restraining order previously entered against the defendant be continued until final adjudication of the issue. On January 29, 1971, the Honorable Luther C. Hames, Jr., granted a certificate of immediate review of the said order. Arthur K. Bolton, Attorney General for the State of Georgia, filed a notice of appeal in the defendant's behalf, and the plaintiff, through his attorney, filed a notice of cross appeal from the said order, all parties being dissatisfied with the ruling of the trial court. In that fashion, the issue of the right to hold the office was submitted to the Supreme Court of Georgia.

On May 20, 1971, the Supreme Court of Georgia issued its order and opinion on the issue of the right to hold the said office. The Supreme Court ruled that the resignation obtained by Governor Lester Maddox was unconstitutional and void, and concluded that the plaintiff, Joseph G. Maddox, was entitled to hold the said office for the full term of his appointment.

On June 11, 1971, the case having been remanded to the Superior Court of Cobb County, the judgment of the Supreme Court was made the order of the trial court.

On September 3, 1971, the plaintiff filed an amendment to his complaint seeking $2,500 attorney fees as damages in the suit against the defendant individually for interference with the plaintiff's right to pursue the duties of his office during the period January 7, 1971, through January 13, 1971. A pre-trial order was entered in the case on April 25, 1972, signed by the Honorable Luther C. Hames, Jr. The jury trial began on May 14, 1973, and on the first day of trial, the plaintiff filed an amendment to his complaint striking all claims for punitive damages and seeking $5,000 in attorney fees as damages.

At the conclusion of the plaintiff's evidence, the defendant, J. O. Partain, made a motion for directed verdict on the grounds that: (a) the defendant was clothed with governmental immunity, (b) there had been no evidence indicating bad faith, wilful or malicious conduct, and (c) the only evidence of damages introduced in the case was that of attorney fees incurred in adjudicating the right of title to the office. The defendant Partain thus argued that he was entitled to the entry of verdict and judgment as a matter of law. The trial judge overruled the defendant's motion for a directed verdict. At the conclusion of the presentation of the defendant's evidence, the defendant again renewed and made a motion for a directed verdict on the same grounds mentioned above. Upon the second day of trial after the evidence was concluded but prior to final arguments to the jury, the plaintiff, over the defendant's objection, filed an additional amendment to the plaintiff's complaint, withdrawing the plaintiff's demand for attorney fees "eo nomine," and seeking damages pursuant to Code § 105-2004 for court costs in the amount of $280 and $3,000 in attorney fees as expenses, seeking a total judgment in the amount of $3,280. The trial court ruled that there was no sufficient showing of the incurring of a $280 court cost, but allowed the amendment to be filed instructing the plaintiff's attorney that he would allow him to argue and to seek attorney fees in the amount of $3,000 since that was "the only proof that has been offered."

The case was submitted to the jury and resulted in verdict and judgment for the plaintiff for $3,000. Subsequently, the defendant filed his motion for judgment n.o.v. or in the alternative for new trial. The motion for new trial was later amended. The trial judge denied both motions and the defendant appeals.

The thrust of the defendant's appeal is (1) that the defendant was clothed with governmental immunity and (2) that attorney fees are not recoverable as an item of damages in cases of this nature.

STOLZ, Judge.

1. "As a general rule `the failure of a public officer to comply with the laws governing and regulating his powers and duties ... usually subjects such officer to a civil action for damages.' 22 R. C. L. 478. It is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well established that `where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as the result of an erroneous decision; provided the acts complained of are done within the scope of the officer's authority, and without wilfulness, malice, or corruption.' [Emphasis supplied.] 22 R. C. L. 486, § 164. Our Supreme Court has said: `The law is well settled that where public officials "are acting within the scope of their duties and exercising a discretionary power, the courts are not warranted in interfering, unless fraud or corruption is shown, or the power or discretion is being manifestly abused to the oppression of the citizen." City of Atlanta v. Holliday, 96 Ga. 546 ( 23 S.E. 509).' Hudspeth v. Hall, 113 Ga. 4, 7 ( 38 S.E. 358, 84 ASR 201), and cit.; Pruden v. Love, 67 Ga. 190; Paulding County v. Scoggins, 97 Ga. 253 ( 23 S.E. 845); Varner v. Thompson, 3 Ga. App. 415 ( 60 S.E. 216)... [T]he immunity from civil liability given to public officers for a mistake in judgment `extends to errors in the determination both of law and of fact... As regards errors of law, he is equally protected when he adopts a mistaken construction of an Act of Congress or a State statute, or when he misunderstands the common law.' 22 R. C. L. 486. The Supreme Court of Idaho, in State v. American Surety Co., 26 Idaho 652 ( 145 P. 1097, AC 1916E 209), in discussing and adopting the general rule of immunity of public officers from civil liability for errors in judgment, said: `So from all the cases, including the cases where the breaches were acts of commission and acts of omission, the sound rule seems to be that some words beyond the mere allegations of negligence and failure to perform should be alleged, showing an intent to act wrongfully, wilfully, maliciously, unfaithfully, or in bad faith, or, in other words showing evil intent, and then allege such facts as did constitute such intent.'" Gormley v. State, 54 Ga. App. 843, 847, 851 ( 189 S.E. 288). Likewise, "[i]t is the general rule that public officers, when acting in good faith and within the scope of their duty, are not liable to private action. This immunity is not extended to them when they do things not authorized by law, or act in a wanton or malicious way and with intent to injure the property of another. In the latter case, they are responsible for a violation of their duty. McClellan v. Carter, 30 Ga. App. 150, 151 ( 117 S.E. 118)... `The power and duty to exercise judgment and discretion is not conferred alone on public officers who sit as judges. There are a large number of such officers whose duties lie wholly outside the domain of courts of justice. To distinguish them from judicial powers, such powers are termed quasi-judicial or discretionary, as they are said to lie midway between judicial and ministerial ones. The name of the officer or officers is immaterial, and the question depends on the character of the act. If the act done for which recovery is sought is judicial or quasi-judicial in its nature, the officer acting is exempt from liability. Mechem on Public Officers, 420, §§ 636, 638. For reasons of private interest and public policy a quasi-judicial officer cannot be called on to respond in damages to a private individual for the honest exercise of his judgment within his jurisdiction, however erroneous or misguided his judgment may be, "for their authority is fixed by laws which those who deal with them are as much bound to know as are the officers themselves. Otherwise, not only would it be difficult to get responsible men to fill public office, but there would be constant temptation to yield officially to unlawful demands, lest private liability be asserted and enforced. But, although officers, they may not be rascals, and liability may arise for tortious conduct. In matters of ministerial duty they may even be liable for nonfeasance as well as misfeasance, for mistakes and neglects (11 Cyc. 410; Amy v. Supervisors, 11 Wall. 136, 20 LE 101); but in matters of judgment and discretion they are liable only if they act wilfully, corruptly, or maliciously (11 Cyc. 411)." [Emphasis supplied.] Commercial Trust Co. v. Burch, 267 F 907, 909; Tucker v. Shorter, 17 Ga. 620; Ghent v. Adams, 2 Ga. 214, 216.' Price v. Owen, 67 Ga. App. 58, 60-61 ( 19 S.E.2d 529)... In general a malicious act involves all that is usually understood by the term `wilful,' and is further marked by either hatred or ill will or by such utter recklessness and disregard of the rights of others as denotes a corrupt or malevolent disposition. State v. Willing, 129 Iowa 72 ( 105 N.W. 355, 356). `Bad faith' is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will. Spiegel v. Beacon Participations, 297 Mass. 398 ( 8 N.E.2d 895). `Bad faith,' though an indefinite term, differs from the negative idea of negligence, in that it contemplates a state of mind affirmatively operating with a furtive design or some motive of interest or ill will. New Amsterdam Cas. v. National Newark Essex Banking Co., 117 N. J. Eq. 264 ( 175 A 609). `Malice' is bad faith or bad motive. Potts v. Dies, 132 F.2d 734, 735 (77 U.S. App. D.C. 92)." Vickers v. Motte, 109 Ga. App. 615, 617, 618, 619 ( 137 S.E.2d 77).

"All information both oral and written received by the State Board of Pardons and Paroles in the performance of their duties ... and all records, papers and documents coming into their possession by reason of the performance of their duties ... shall be classified as confidential state secrets until declassified by a resolution of the board passed at a duly constituted session of the board." Code Ann. § 77-533 (a) (Ga. L. 1953, Nov. Sess., pp. 210, 211).

"No person shall divulge or cause to be divulged in any manner any confidential state secret. Any person violating the provisions of section 77-533, relating to secrecy of information received by the State Board of Pardons and Paroles, or any person who causes or procures a violation of such section or conspires to violate such section, shall be guilty of a misdemeanor and punished as for a misdemeanor." (Emphasis supplied.) Code Ann. § 77-9911 (Ga. L. 1953, Nov. Sess., pp. 210, 211).

At all times pertinent hereto, the defendant was a member of the State Board of Pardons and Paroles, an office created under the Constitution of the State of Georgia and placed within the executive department of government. As chairman of the board, he had the primary responsibility for preserving the confidentiality of its files. He received his information and instructions from the Governor of Georgia, the chief executive officer of our state. In passing on the governor's instructions to an employee of the Board of Pardons and Paroles, with instructions to the employee to so advise the office manager, the defendant acted within his discretionary authority as chief executive of the board.

The record in the present case is utterly devoid of any conduct by the defendant which could remotely be construed as being sufficient to lift the shield that protects public officers acting colore officii. Accordingly, the trial judge erred in failing to grant the defendant's motion for judgment notwithstanding the verdict.

2. The remaining issue is rendered moot by the holding in Division 1.

Judgment reversed. Deen and Webb, JJ., concur.