Opinion
37443.
DECIDED FEBRUARY 19, 1959.
Action on bonds. Chattooga Superior Court. Before Judge Davis. September 3, 1958.
Archibald A. Farrar, for plaintiff in error.
Hardin, McCamy Minor, contra.
Since properly construed the petition shows that the peace officer whose faithful performance bonds were sued on caused the warrants for the plaintiff's arrest to be issued in his capacity as a private citizen and not in the furtherance of his official duties as a peace officer, the petition did not state a cause of action against the surety for a breach of the bonds.
DECIDED FEBRUARY 19, 1959.
James V. Cleland sued United States Fidelity Guaranty Insurance Company on the bonds for the faithful performance by Benjamin Gilbert Smith of his duties as policeman for the Town of Menlo, Georgia, and as constable for the 968th District Georgia Militia, of Chattooga County. The petition alleged that the condition of the bonds had been violated by Smith while acting in his official capacity as policeman and constable. The facts alleged to show this violation are as follows: "that on the third day of May, 1957, the said Benjamin Gilbert Smith while acting in his official capacity as policeman and constable appeared before the Honorable A. H. Warren, a justice of the peace for the 925th District G.M. of said county and made affidavits upon two criminal warrants charging the petitioner with speeding and operating a vehicle without lights on the 22nd day of April, 1957; that as a result of said affidavits being made the petitioner was arrested by the Deputy Sheriff of Chattooga County and forced to make bond to appear before the city court of said county; that the petitioner was brought before the City Court of Chattooga County, Georgia, and was tried upon the accusations jointly on the 5th day of June, 1957, and that petitioner was acquitted on both charges, the presiding judge directing verdicts in favor of the petitioner on both accusations. These acts by the trial judge finally terminated said cases against the petitioner; that at the trial of said cases the said Benjamin Gilbert Smith testified that he detected petitioner speeding and operating a vehicle without lights on the 22nd day of April, 1957, but that he did not have warrants issued until the 3rd day of May, 1957. He testified further that he did not intend to prosecute petitioner, but intended to give petitioner a break and that it was only after petitioner sued him in an independent civil matter that he decided to have the aforesaid warrants issued; that petitioner shows that the said Benjamin Gilbert Smith acted maliciously in having the said warrants issued and in prosecuting him in the City Court of Chattooga County, Georgia, on the charges mentioned aforesaid and that the said Benjamin Gilbert Smith was acting in his official capacity both as constable and policeman in making these charges and prosecuting the petitioner thereunder and that said warrants were maliciously issued and without probable cause, as petitioner had not violated the criminal laws as charged; and that had not petitioner sued the said Benjamin Gilbert Smith that they would not have been issued and petitioner prosecuted thereunder."
The defendant's general demurrer to the petition was sustained and the action was dismissed, and the plaintiff excepts.
While procuring the issuance of an arrest warrant may be within the official duties of a peace officer, his procurement thereof may also be made as a private citizen and thus be wholly disconnected from the performance of his official duties. Smith observed the plaintiff allegedly violating the law. He could have had a warrant issued and arrest made for such violation in the furtherance of his duties as a peace officer. This Smith did not do. According to the petition, Smith intended doing nothing about the alleged violation. He let the matter pass. Later, after the plaintiff had brought suit against him, Smith, because of that suit, caused the warrants to issue. The plaintiff contends that this was done as an official act and in his capacity as an officer. We disagree with this contention. When Smith did nothing about the violation and intended doing nothing about it, he abandoned all intentions, if any he had, of taking any official act against the plaintiff. When he later caused the warrants to issue because of a personal grievance with the plaintiff, Smith did so in his capacity as a private citizen and not as a peace officer. Smith, under the allegations, was not motivated by his official duties and responsibilities but because of a personal grievance. The procurement of an arrest warrant is not peculiar to the official duties of a peace officer. Any private citizen may do so and the procedure followed is the same. Code §§ 27-102 and 27-104. Smith did not need his office to have the warrants issued. His official position gave him no advantage or aid, nor was it a requirement to the issuance of the warrants.
Because Smith did not cause the warrants to issue in furtherance of his official duties as a peace officer, an action on his bonds for such act will not lie.
The court did not err in sustaining the general demurrer and in dismissing the action.
Judgment affirmed. Quillian and Nichols, JJ., concur.